ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL

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1 Filing # Electronically Filed 02/14/ :09:22 PM RECEIVED, 2/14/ :13:36, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA WILLIAM BERNHART, M.D., ROY LIPTRAP, P.A., and CITRUS EMERGENCY SERVICES, P.A., vs. Petitioners, Case No.: SC Fifth District Court of Appeal Case No.: 5D Citrus County Case No CA-1956 PAULA HARTONG, individually, and as personal representative for the Estate of AMANDA WILKINSON, Respondent. ON DISCRETIONARY REVIEW FROM THE FIFTH DISTRICT COURT OF APPEAL PETITIONERS' AMENDED INITIA L BRIEF ON JURISDICTION /s/ Philip F. Moring Thomas E. Dukes, III Florida Bar No.: tdukes@mmdor1.com Philip F. Moring Florida Bar No.: pmoring@mmdorl.com McEwan, Martinez & Dukes, P.A. Post Office Box 753 Orlando, FL Telephone: (407) Facsimile: (407) Attorneys for Petitioners, WILLIAM BERNHART, M.D., ROY LIPTRAP, P.A., and CITRUS EMERGENCY SERVICES, P.A.

2 TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF CITATIONS STATEMENT OF CASE AND FACTS... SI-]MMARY OF ARGTIMENT iii 1 2 a J I. THE COURT SHOULD EXERCISE ITS DISCRETIONARY JURISDICTION BECAUSE HARTONG V. BERNnAT{T DIRECTLY CONFLICTS WITH BRYANT V. FIADINI ON THE ISSUE OF WHETHER THE DENIAL OF PLAINTIFF'S MOTION TO AMEND HER PLEADINGS, IF ERROR, WAS HARMFUL \ryhere THE JURY FOUND NO NEGLIGENCE ON TI{E PART OF PETITIONERS THAT WAS A LEGAL CAUSE OF DECEDENT'S DEATH II.TTIE COURT SHOULD EXERCISE ITS DISCRETIONARY JURISDICTION BECAUSE HARTONG V BERNHART DIRECTLY CONFLICTS WITH BRYANT V. FIADINI ON THE ISSUE OF WHETI{ER A DEFENDANT IS ENTITLED TO WITHDRAW A COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE AT TIIE CHARGE CONFERENCE AND PREVENT TI{E GIVING OF A COMPARATIVE NEGLIGENCE JURY INSTRUCTION CONCLUSION CERTIFICATE OF SERVICE... CERTIFICATE OF TYPEFACE COMPLIANCE... J t2 ll

3 TABLE OF CITATIONS Florida Su e Court Cases: ffinan v. Jones 280 So. 2d431 (Fla. 1973)...3-5,7-8 Murden v. Miami tw & Ess Co So. 7t4 (Fla. 1934) 5 lorida Star v. B.J.F 530 So.2d286 (Fla. 1988) 4 Florida District of Anneal Cases: v. Southern Hos F 943 So. 2d202 (Fla. lst DCA 2006)... 6 Bryant v. Fiadini. 405 So.2d1341 (Fla.3dDCA 1981) 2-10 Hartong v. Bernhart, 128 So. 3d 8s8 (Fla. 5th DCA 2013) Kinnebrew v. Kmart Corp So. 2d t87 (Fla. 3d DCA 2000) Letzler v. Cephas. 792 So.2d 481 (Fla. 4th DCA 2001) McKesson 784 So. 2d 1156 (Fla. 2d DCA 2001) Mosca v. Middleton. 342 So. 2d 986 (Fla. 3d DCA 1977) Inc. v. T 787 So. 2d220 (FIa.2d DCA 2001)...7 lll

4 Standard Havens Products. Inc. v. Benitez, 648 So. 2dtI92 (Fla. 199a) 6 Florida tion: Fla. Const. Art.5, $ 3(bX3) 4,8, 10 Florida Rules of Appellate Procedure: Fla. R. App.P. e.030(a)(z)(a)(iv) 4,8, 10 iv

5 Case No.: SC STATEMENT OF THE CASE AND FACTS The facts of the case were set forth by the Fifth District in its opinion below: Paula Hartong ("Appe11ant"), proceeding in an individual capacity and as a personal representative of her twenty-one-year-old daughter, Amanda Wilkinson's ("Wilkinson") estate, appeals, inter alia, the lower court's denial of her motion to amend her complaint to include comparative negligence.... Appellant filed a complaint alleging negligence and wrongful death against William Bernhart, M.D., Roy Liptrap, P.4., and Citrus Emergency Services, P.4., (collectively "Appellees") after Wilkinson died from MRSA lobular necrotizing pneumonia. Appellant pleaded only that Appellees were negligent, not that Wilkinson was comparatively negligent in causing her own death. Appellees asserted comparative negligence as an affirmative defense... In their opening statement, Appellees indicated that the presence of alcohol and hydrocodone in Wilkinson's system had a negative effect on her respiratory system which, combined with pneumonia, impaired her ability to breathe and resulted in her death. During trial, one of Appellees' expert witnesses testified that Wilkinson died of pneumonia complicated by aspiration and by drug-hydrocodoneand alcohol intoxication....appellees rested and subsequently withdrew the affirmative defense of comparative negligence. Appellant then moved, pursuant to Florida Rules of Civil Procedure 1.190(b) and (e), to amend the complaint to conform to the evidence presented at trial so thal she could obtain a jury instruction on comparative negligence. The lower court denied the request because the court was unclear on the form of the intended amendment and because the issue of comparative negligence had been tried by consent of the parties.... I

6 Case No.: SCl4-188 The jury returned a verdict in favor of Appellees by answering ('No" to the following questions on the verdict form: l. Was there negligence on the part of Defendant, Roy Liptrap, P.4., which was a legal cause of death to Amanda V/ilkinson? 2. Was there negligence on the part of Defendant, \Milliam Bernhart, M.D., which was a legal cause of death to Amanda Wilkinson? Hartong v. Bernhart, 128 So. 3d 858, 860 (Fla. 5th DCA 2013) In its December 6,2013 opinion, the Fifth District Court of Appeal reversed the lower court's denial of Respondent's request for a comparative negligence instruction, and found that the denial was not harmless. Id. at On January 6, 2014, the Fifth District denied Petitioners' Motion for Rehearing, Rehearing En Banc, and Clarification and Motion for Certification of Conflict, filed on December 17,2013. Petitioners timely filed their Notice of Appeal on January 29,2014. SUMMARY OF ARGUMENT The Court should exercise its discretionary jurisdiction on two separate bases. First, there is direct conflict between the Fifth District in Hartong and the Third District in Bryant v. Fiadini, and a number of other district courts, on the issue of whether it was harmful error to deny the request for a comparative negligence instruction. Since the jury answered "no" to the question "'Was there negligence on the part of fpetitioners] which was a legal cause of the death of 2

7 Case No.: SC Amanda Wilkinson?", the jury never reached the comparative negligence issue. Therefore, the elror, if any, in denying the requested instruction was harmless. Hartong also conflicts with Bryant in its reliance on this Court's opinion in Hoffman v. Jones. Each court relied on Hoffman to command different outcomes; namely, whether or not it was harmless effor to deny the requested instruction. The Court should also exercise its discretionary jurisdiction because Hartons conflicts with Bryant on the issue of whether a defendant is entitled to withdraw a comparative negligence affirmative defense at the charge conference and prevent thé giving of a comparative negligence jury instruction. Hartong cited Bryant for the proposition, "If defendants waive comparative negligence at a charge conference, the plaintiff is not entitled to the coresponding jury instruction." However, it then ignored that holding on nearly identical facts. Accordingly, because there are two separate and distinct conflicts, this Court should exercise its discretionary jurisdiction and hear this appeal on the merits. I ARGUMENT TT{E COURT SHOULD EXERCISE ITS DISCRETIONARY JI-]RISDICTION BECAUSE HARTONG V. BERNI{ART DIRECTLY CONFLICTS WITH BRYANT V. FIADINI ON TI{E ISSUE OF WHETI{ER THE DENIAL OF PLAINTIFF'S MOTION TO AMEND F{ER PLEADINGS, IF ERROR, WAS HARMFUL WHERE THE JURY FOUND NO NEGLIGENCE ON TTIE PART OF PETITIONERS THAT WAS A LEGAL CAUSE OF DECEDENT'S DEATH. J

8 Case No.: SC This Court has jurisdiction to review a decision of a district court that "expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same questions of law." Fla. Const. Art. 5, $ 3(bX3); Fla. R. App. P (aX2XAXiv). The test for when conflict jurisdiction arises was set forth in The Florida Star v. B.J.F., 530 So. 2d 286,288 (Fla. 1988): rd. This Court in the broadest sense has subject-matter jurisdiction under article V, section 3(bX3) of the Florida Constitution, over any decision of a district court that expressly addresses a question of law within the four corners of the opinion itself. That is, the opinion must contain a statement or citation effectively establishing a point of law upon which the decision rests. fhowever], it is not necessary that conflict actually exist for this Court to possess subject-matter jurisdiction, only that there be some statement or citation in the opinion that hypothetically could create conflict if there were another opinion reaching a contrary result. This is the only reasonable interpretation of this constitutional provision. Here, there is direct conflict between Hartong v. Bernhart, I28 So. 3d 858, and Bryant v. Fiadini, 405 So. 2d 1341 (Fla. 3d DCA 1981), on whether the error in refusing to instruct the jury on the issue of comparative negligence, if any, was harmless. As stated by the Fifth District, the jrry retumed a verdict in favor of Petitioners by answering ((No" to the question of whether there was "negligence on the part of fpetitioners], which was the legal cause of death to Amanda 'Wilkinson." Hartons, 128 So. 3d at 861. The court then cited to Hoffman v. Jones, 280 So. 2d 431 (FIa. 1973), in support of its reasoning that the error was harmful: 4

9 Case No.: SC We disagree because the doctrine of comparative negligence permits the jury to apportion fault between multiple parties that are the legal cause of damages and accordingly apportion damages. Hoffman v. Jones,280 So.2d 431,439 (Fla.l973) [] Here, the verdict form did not separate the concepts of negligent conduct and legal cause as Appellees assert. Indeed, if the jury found Appellees both negligent and the legal cause while also finding Wilkinson's negligence to be a \egal cause, the question-"'was there negligence on the part of Defendant, Roy Liptrap, P.4., which was a legal cause of death to Amanda V/ilkinson?"--only permitted the jury an all-or-nothing approach. The jury would have been unable to apportion fault to both V/ilkinson's and Appellees' negligence. Thus, the verdict form employed the longovemrled defense of contributory negligence and acted as a complete bar to Appellant's recovery. Accordingly, the lower court's failure to permit an amendment to the complaint, which prohibited Appellant from obtaining a jury instruction and verdict form for comparative negligence, was not cured by the j.rry's verdict. Id (emphasis added and intemal quotations omitted) This reasoning directly conflicts with Bryant. There, the Third District found the error, if any, was harmless when the trial court refused to give a comparative negligence instruction in a negligence action after a defendant withdrew its affirmative defense at the charge conference: Comparative negligence only has the effect of reducing damages if liability is established. We find no error in refusing to charge on comparative negligence but even if it was, it was harmless error because the jury found no liability. As the Supreme Court so succinctly stated in Murden v. Miami Poultry & Egg Co., [152 So. 714 (FIa. I%\l: It appears from a consideration of the entire record, however, that the judgment should not be reversed because of the effoneous charges because the rule is well settled that where evidence in a law case discloses no liability, there can be no 5

10 Case No.: SC recovery and a verdict for the defendant in such cases must stand. Bryant,405 So. 2dat 1343 (emphasis added). The Hartong.opinion also conflicts with a number of other cases on the application of the harmless effor test to a failure to give requested jury instructions generally. E.& Bradle) v. Southern Baptist Hosp. of Florida. Inc., 943 So. 2d 202, 206 (Fla. lst DCA 2006) (Stating when analyzing whether an effoneous borrowed servant jury instruction was harmful error: "...[A] trial court's failure to give an instruction apportioning damages is harmless in a medical malpractice action when a jury finds no negligence, because there is nothing to apportion when no negligence occurs."); Kinnebrew v. Kmart Corp.,755 So.2d I87,188 (Fla. 3d DCA 2000) (Stating when analyzing whether an assumption of risk instruction included within a comparative negligence instruction resulted in harmful error: "Because there was a defense verdict, we think that the claims of error with respect to the issue of comparative negligence are moot."); Standard Havens Inc. v. Benitez. 648 So. 2d 1192, 1197 (Fla. 1994) (discussing comparative negligence in a products liability caset "Of course, if a court determines as a matter of law, or a jury determines as a matter of fact, that a defendant was not negligent or that its negligence was not a cause of the claimant's injury, or if it is determined that a claimant's negligence was the sole legal cause of her injury, then, in such event, the claimant could not recov..."); Mosca v. Middleton, 342 So. 2d 986, 987 (Fla. 3d 6

11 Case No.: SCl4-188 DCA 1977) ("4 j.rry may find that the defendant's negligence was the sole proximate cause of the accident. Even if the plaintiff was negligent, his negligence may not have contributed to the proximate cause of the accident."). Finally, Hartong conflicts with Bryant in its reliance upon Hoffrnan. Hartons relies upon Hoffman for the proposition that, since the comparative negligence instruction was not given, the jury was improperly left with an all or nothing choice that, in effect, used the outdated doctrine contributory fault rather than comp arative negligence. Hartong, 128 So. 3d at 863. Bryant relies upon Hoffman for the proposition that, where the trial court permitted the defendant to withdraw its comparative negligence affirmative defense and prohibit the plaintiff from putting a comparative negligence instruction on the verdict form, "It was also within the province of the jury to find that the defendants were not guilty of any negligence." Id at Essentially, Hartong improperly second guessed the jury's verdict in violation of the cannon of appellate review that a court must presume that the jury understood and followed the instructions given to them; that a defendant's actions must have been both negligent and a legal cause of injttry to plaintiff. E.xLetúer v. Cephas, 792 So. 2d 481, 287 (Fla. 4th DCA 2001) ("In assessing how the jury resolved this issue, we must presume that the jury followed the court's instructions and applied the law to the facts as it found them."); Mourer & Mourer, Inc. v. Terry, 7

12 Case No.: SCl So. 2d220,221 (FIa.2d DCA 2001) (same); Miner v. McKesson Corp., 784 So. 2d 1156, 1159 (Fla. 2ÍDCA2001) (same) Thus, not only is there conflict between Hartone and Bryant on the issue of the application of the harmful error analysis to nearly identical facts, and conflict between Hartong and numerous other cases on the application of the harmful effor analysis and the failure to give requested jury instructions generally, but there is also conflict between Hartong and Bryant in their use of prior Supreme Court precedence in Hoffrnan in reaching contrary outcomes. Accordingly, the Court should exercise its discretionary conflict jurisdiction, and hear the appeal on its merits. Fla. Const. Art. s, $ 3(bX3); Fla. R. App.P. e.030(a)(2)(a)(iv). il THE COURT SHOULD EXERCISE ITS DISCRETIONARY JURISDICTION BECAUSE HARTONG V. BERNI{ART DIRECTLY CONFLICTS WITH RRYANT V. FIADINI ON TI{E ISSUE OF WHETI-IER A DEFENDANT IS ENTITLED TO WITHDRAW A COMPARATIVE NEGLIGENCE AFFIRMATIVE DEFENSE AT TI{E CHARGE CONFERENCE AND PREVENT TI{E GIVING OF A COMPARATIVE NEGLIGENCE JURY INSTRUCTION. The Court should also exercise its discretionary conflict jurisdiction due to the conflict between Hartong and Bryant on whether a defendant is permiüed to withdraw an affirmative defense of comparative negligence at the charge conference and prohibit a plaintiff from receiving a jury instruction on comparative negligence Hartong was a medical malpractice action related to care rendered to decedent by Petitioners. I28 So. 3d at 860. Petitioners pled the affirmative defense of 8

13 Case No.: SCl4-188 comparative negligence, which was withdrawn at the charge conference. Id. Respondent then made an ore tenus Motion to Amend the Pleadings to Conform to the Evidence, and sought to plead for the first time after the evidence was closed that the decedent was herself negligent. Id. The trial court denied Respondent's Motion, and ajury verdict was returned for Petitioners, finding that there was no negligence on behalf of Petitioners that was the legal cause of the death of the decedent. Id. On appeal in Hartong, the Fifth District found that the trial court erred by refusing to give the comparative negligence instruction. Id. Bryant held directly the opposite on nearly identical facts:...the defendants filed an answer, which raised the issue of comparative negligence of the plaintiffs... At the time of the charge conference, the defendants withdrew the defense of comparative negligence and requested and received a ruling from the trial judge that no instruction on comparative negligence would be given. The jury returned a verdict for the defendants. This appeal ensued. The points on appeal are: fwhether] the trial court erred in permitting the withdrawal of the comparative negligence defense and in refusing to instruct on comparative negligence, and... We affrrm. Bryant, 405 So. 2d at Indeed, Hartong cited to Bryant when stating, "If defendants waive comparative negligence at a charge conference, the plaintiff is not entitled to the corresponding jury instruction." Hartong,2013 WL at 2. Hartong also noted that "There is no indication that the plaintiff in Bryant pleaded comparative negligence."!d. Nonetheless, Hartong still held that Respondent was entitled to 9

14 Case No.: SC amend her complaint to conform to the pleadings at the charge conference, and that a comparative negligence instruction should have been given to the jury and placed on the verdict form. Id. Because there is direct conflict between Hartong and Bryant on the issue of whether a defendant is entitled to withdraw a comparative negligence affirmative defense and prevent a plaintiff from putting comparative negligence in front of the jrrry, the Court should exercise its discretionary conflict jurisdiction and hear the appeal on its merits. Fla. Const. Art. 5, $ 3(bX3); Fla. R.App.P (aX2XAXiv). CONCLUSION There is direct conflict between Hartong and Bryant, as well as a number of other district courts of appeal, on the issues of: 1) whether it was harmless error to deny the requested comparative negligence jury instruction where the jury found no negligence on the part of Petitioners that was the legal cause of injury to Respondent; and 2) whether a defendant is entitled to withdraw a comparative negligence affirmative defense and prevent the giving of a comparative negligence jury instruction. Accordingly, the Court should exercise its discretionary jurisdiction and hear this case on the merits. CERTIFICATE OF SERVICE I F{EREBY CERTIFY that on this I4th day of February, 2014, a true and correct copy of the foregoing has been electronically filed with the Clerk of the Court by using the Florida Courts E-Filing Portal, and furnished via to the 10

15 CaseNo.: SC following: Celene H. Humphries, Esquire, Brannock & Humphries, 100 South Ashley Drive, Suite 1130, Tampa, Florida 33602; and Jeffrey r6jack" Gordon, Esquire, Maney & Gordon, P.4., 101 East Kennedy Boulevard, Suite 3170, Tampa, Florida 33602; at the following addresses: com sp ell enb ar s. com) j. com /s/ Philip F. Morins Thomas E. Dukes, III Florida Bar No.: Philip F. Moring Florida Bar No.: McEwan, Martinez & Dukes, P.A. Post Office Box 753 Orlando, FL Telephone: (407) I Attorneys for Petitioners, WILLIAM BERNHART, M.D., ROY LIPTRAP, P.4., and CITRUS EMERGENCY SERVICES, P.A. 11

16 Case No.: SC CERTIFICATE O F TYPEF'ACE COMPLIANCE I certifu that this brief was typed in 14-point Times New Roman font pursuant to Rule 9.210(a)(2), Florida Rules of Appellate Procedure. /s/ Philip F. Morins Thomas E. Dukes, III Florida Bar No.: tdukes@mmdorl.com Philip F. Moring Florida Bar No.: pmoring@mmdorl.com McEwan,Marlinez & Dukes, P.A. Post Office Box 753 Orlando, FL Telephone: (407) Facsimile: (a07) Attorneys for Petitioners, WLLIAM BERNHART, M.D., ROY LIPTRAP,P.A., and CITRUS EMERGENCY SERVICES, P.A. t2

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18 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2013 NOT FINAL UNTIL TIME EXP RES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED PAULA HARTONG INDIVIDUALLY, and as Personal Representative for the ESTATE OF AMANDA WILKINSON, Appellant, V. Case No. 5D WILLIAM BERNHART, M.D., ROY L PTRAP, P.4., and CITRUS EMERGENCY SERVICES, P.4., Opinion filed December 6, 2013 Appealfrom the Circuit Coutt for Citrus County, Patricia V. Thomas, Judge, Jeffrey "Jack" Gordon of Maney & Gordon, P.A., and Celene H. Humphries and Sarah C. Pellenbarg of Brannock & Humphries, Tampa, for APPellant. Thomas E, Dukes, lll, and Philip F. Moring of McEwan, Martinez & Dukes, P'4., Orlando, for Appellees, WALLIS, J Paula Hartong ("Appellant"), proceeding in an individual capacity and as a personal representative of her twenty-one-year-old I hereby certify that tho above and foregolng is a true co'py of ìnstrumenl filed in my office' PAMEI.A R. MASTERS, CLERK COURT OF APPEAL OF daughter, Amanda Wilkinson's. "t' '- ' f 'l''i':' ', Per

19 ("Wilkinson,,) estate, appeals, inter alia, the lower court's denial of her motion to amend her complaint to include comparative negligence. Because the lower court reversibly erred when it denied her motion to amend, requiring a new trial, we do not address the other issues on appeal except the lower court's improper admission of two Department of children and Families ("DCF") shelter reports into evidence during trial. we reverse and remand for a new trial. Appellant filed a complaint alleging negligence and wrongful death against William Bernhart, M.D., Roy Liptrap, P.A', and Citrus Emergency Services, P'A'' (collectively "Appellees") after Wilkinson died from MRSA lobular necrotizing pneumonia, Appellant pleaded only that Appellees were negligent, not that Wilkinson was comparatively negligent in causing her own death. Appellees asserted comparative negligence as an affirmative defense' Appellees filed a motion requesting that the lower court take judicial notice of two DCF shelter orders in which a circuit court found probable cause to remove Wilkinson's children from her care. Both shelter orders included the circuit court's findings regarding Wilkinson's abuse of alcohol and drugs, her failure to submit to court-mandated drug testing, and a history of domestic violence with the father of Witkinson's children. ln their opening statement, Appellees indicated that the presence of alcohol and hydrocodone in wilkinson's system had a negative effect on her respiratory system which, combined with pneumonia, impaired her ability to breathe and resulted in her death. During trial, one of Appellees' expert witnesses testified that Wilkinson died of pneumonia complicated by aspiration and by drug-hydrocodone-and alcohol intoxication. 2

20 After the close of the Appellees' case, Appellees requested the court take judicial notice of the DCF shelter orders, and Appellant again objected on the basis that the documents contained inadmissible hearsay and character evidence, The lower court took judicial notice and allowed the shelter orders into evidence under sections (6) and , Florida Statutes. Appellees rested and subsequently withdrew the affirmative defense of comparative negligence Appellant then moved, pursuant to Florida Rules of Civil Procedure 1'190(b) and (e), to amend the complaint to conform to the evitlence presented at trial so that she could obtain a jury instruction on comparative negligence. The lower court denied the request because the court was unclear on the form of the intended amendment and because the issue of comparative negligence had been tried by consent of the parties.l ln closing arguments, Appellees argued that the combination of alcohol, 1 follows: The lower court addressed Appellant's request to amend her complaint as THE COURT: The issue of comparative negligence was in the pleadings, and ii was tried, and now you want to withdraw your atfirmative defense. DEFENSE COUNSEL: Yes, ma'am, THE COURT: I don't know what cause of action '- I mean, you have to have a cause of action that would be amended' i do not know that there is anything cognizable that you would be pleading, not to mention it was already tried by - mean, the whole issue has been tried. So your request to conform -- PLAINTIFF COUNSEL: To amend the complaint to conform to the evidence. THE COURT: - is denied, because the issues have been tried. And furthermore, I don't know what the cause of action would be. 3

21 hydrocodone, lidocaine, and pneumonia caused Wilkinson's death: so you take pneumonia that is like a lightening [sic] strike and you add it to alcohol and hydrocodong, which depressed the respiratory effort, and you add to it lidocaine that was in hersystem',.youtakethesethingsandyousupe.rimpose them, and you çjet the anatomy of a rapid and virulent and deadly lung-oestroying pneumonia, which presents quickly, rup"rimpoðed on these other things. That's how you take a healthy 21.year.old, get the diagnosis right, and have her dead within 24 hours. The jury returned a verdict in favor of Appellees by answering "No" to the following questions on the verdict form: 1'WastherenegligenceonthepartofDefendant,Roy Liptrap, P.4., whicñ was a legal cause of death to Amanda Wilkinson? 2. Was there negligence on the part of Defendant, william Bernhart, M.D., wtr ch was a legal cause of death to Amanda Wilkinson? Appellant argues that the lower court erred by denying her oral motion to amend the complaint to conform the pleadings to the evidence presented at trial and include comparative negligence when Appellees withdrew the affirmative defense after the evidence was presented, Appellant argues that by presenting evidence relevant to Wilkinson's drug and alcohol use to attack causation, but without permitting the jury to consider Wilkinson's comparative negligence, Appellees created a "take it or leave it" situation similar to contributory negligence, which is contrary to Florida law and public policy. We agree. A trial court's denial of a motion to amend the pleadings to conform with the evidence is reviewed for abuse of discretion. Turna v. Advanced Med-Servs., lnc., 842 4

22 So. 2d 1075, 1076 (Fla. 2d DCA 2003) ("When evidence is introduced at trial concerning facts or issues not included in the pleadings, the trial court, in its discretion, may allow amendments to conform to the evidence."); see also Crown v. Chase Home Fin., 41 So. 3d 978, (Fla, sth DCA 2010) (noting that "all doubts should be resolved in favor of allowing the amendment and refusal to do so generally constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudíce the opposing pafty, the privilege to amend has been abused, or amendment would be futile"). "An issue is tried by consent when there is no objection to the introduction of evidence on that issue," 675 So. 2d 252,254 (Fla.5th DCA 1996). (citation omitted). "When issues not raised by the pleadings are tried by either express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Fla. R. Civ. P (b), The Florida Supreme Court has noted that "if affirmative defenses are not proffered but are tried by express or implied consent of the parties, they shall be treated as if they had been raised by the pleadings." Garrett v. Oak Hall Club, '118 So. 2d 633, 635 (Fla. 1960). Pursuant to this same rule, the amendments may be made upon motion of any party at any time, even after judgment, ld. Based on Bryant v. Fiadini, 405 So. 2d 1341,1343 (Fla. 3d DCA 1981), and Philip Morris USA, lnc. v. Arnitz, 933 So. 2d 693, 698 (Fla. 2d DCA 2006), Appellant's only option to obtain a jury instruction under existing Florida law was to amend the pleadings, lf defendants waive comparative negligence at a charge conference, the plaintiff is not entitled to the corresponding jury instruction, Bryant, 405 So. 2d at

23 ln Bryant, the defendant in a negligence case withdrew the affirmative defense of comparative negligence at the charge conference, and the lower court ruled that the jury would not be instructed on comparative negligence, ld, The third district agreed with the lower court, finding the refusal to instruct the jury on comparative negligence proper, because a "defendant has a right to waive any defense." ld. (citations omitted). There is no indication that the plaintiff in Bryant pleaded comparative negligence. However, plaintitfs can plead their own comparative fault and are entitled to an instruction even if the defendants do not raise it as an affirmative defense. Arnitz, 933 So. 2d at 698. ln Arnitz, the second district distinguished its case from Fryant because the plaintiff in Arnitz pleaded comparative negligence in his amended complaint. The Arnitz court, in allowing the amendment, emphasized, "that if a plaíntiff chooses to plead his own comparative fault, a defendant should not be able to control the plaintiffs theory of his case and preclude the plaintiff from accepting some responsibility for his injuries." ld.. We find the result reached in AfnitZ to be informative in the instant case because Appellant attempted to amend her pleadings to add comparative negligence, 2 Here, both parties developed the issue of comparative fault throughout discovery and the trial. Because,Appellees' medical expert cited alcohol and drug use in his opinion on causation, which Appellees argued in closing, we are not convinced by 2 We also find instructive a series of Missouri appellate cases that hold if defendants pleaded comparative negligence and withdrew the affirmative defense after the evidence was heard, a plaintiff is entitled to a comparative fault instruction and corresponding verdict form without pleading comparative negligence. Smith v. Brown & iamson To 275 S.W.3d 748,808 (Mo, Ct. App. 2008); Thompson v. Brown & Willia n Tobacco Coro S.W3d 76, 122 (Mo. Ct. App. 2006); Rudin v, ParkwaLSch. Dist,, 30 S.W.3d 838, 841 (Mo. Ct. App. 2000); Monteith v, Cundall, 830 S,W.2d 466,469 (Mo, Ct. App. 1992). We exercise judicial restraint and do notgo so far as to hold that a plaintiff can obtain an instruction on comparative fault without having pleaded it, a holding that would conflict with Bryant. 6

24 Appellees that the drug and alcohol use was relevant only to the issue of damages. There would have been no prejudice to Appellees in allowing the amendment, instruction, and verdict form regarding comparative negligence because Appellees focused on the same issue as a defense to the issue of medical causation in opening, during trial, and in closing, Appellees nonetheless argue that the verdict cured any error because the jury found Appellees acted within a reasonable standard of care (i.e., were not negligent) and, therefore, the need to apportion damages was obviated, making any alleged error harmless. We disagree because the doctrine of comparative negligence permits the jury to apportion fault between multiple parties that are the legal cause of damages and accordingly apportion damages. Hotfman v. Jones,280 So. 2d 431,439 (Fla. 1973), (noting the purposes behind the adoption of comparative fault as: "(1) To allow a jury to apportion fault as ít sees fit between negligent parties whose negligence was part of the legal and proximate cause of any loss or injury; and (2) To apportion the total damages resulting from the loss or injury according to the proportionate fault of each party"), Here, the verdict form did not separate the concepts of negligent conduct and legal cause as Appellees assert. lndeed, if the jury found Appellees both negligent and the legal cause while also finding Wilkinson's negligence to be a legal cause, the question- "Was there negligence on the part of Defendant, Roy Liptrap, P,4., which was a legal cause of death to Amanda Wilkinson?"-only permitted the jury an all-or-nothing approach. The jury would have been unable to apportion fault to both Wilkinson's and Appellees' negligence. Thus, the verdict form employed the long-overruled defense of contributory negligence and acted as a complete bar to Appellant's recovery, 7

25 Accordingly, the lower court's failure to permit an amendment to the complaint, which prohibited Appellant from obtaining a jury instruction and verdict form for comparative negligence, was not cured by the jury's verdict' Admission of DCF Orders Although not central to this appeal, we note that the lower court erred by admitting the DCF orders into evidence because they contain inadmissible hearsay.s At trial, over objection, the lower court took judicial notice and allowed the shelter orders containing hearsay into evidence under sections 90,202(6) and , Florida Statutes (2013), and not under any hearsay exception, Although a trial court may take judicial notice of court records under section (6), the statute does not permit "the wholesale admission of all hearsay statements contained within those court records." Stoll v. State, 762 So. 2d 870, 876 (Fla. 2000). "A court judgment is hearsay to the extent that it is offered to prove the truth of the matters asserted in the judgment'" EDO leidman, LLP v. Bancq Espirito Sanlo lnt', 38 So. 3d 874,880 (Fla, 3d DCA 2010) (internal quotation marks omitted) (citations omitted), For the matters asserted in the court le-including a court's judgment-to be admissible, there must be an applicable exception. ld. (citing Stoll, 762 So. 2d at 876). Any third party's statement needs an exception as well, Powell v. State, 9OB So. 2d 1185, 1187 (Fla' 2d DCA 2005) ("statements that constitute hearsay within hearsay are inadmissible unless both statements conform to a hearsay exception," (citing S 90,805, Fla, Stat' (2005); Smith v. State, BB0 So. 2d 730,741 (Fla.2d DCA 2004))). We believe the lower court erred by 3,"Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," $ (1)(c), Fla. Stat. (2013). I

26 admitting the DCF shelter reports using only judicial notioe and.not pursuant to ' i'f,r,.1-:.:,i i L:,,.;..,i1,i:,tir,J,,,,,,,-ri..,l,r, applicable hearsay except ons il;ív :jí.ì;.11:; '''-l' rr"; The lower court erred by denying Appellant's request to amend her complaint after the close of evidence to include Wilkinson's comparative fault. The denial of l Appellant's request resulted in the applir:ation of the long-overruled doctriqe :j " contributory negligence, We therefore reverse and remand for a new trial and note that judicial notice is not an exception that would permit admission of the hearsay and hearsay within hearsay in the DCF shelter orders. We grant Appellant a new tiíal, REVERSED ANd REMANDED fot NEWTRIAL. PALMER, J., and MIHOK, A,T,, Associate Judge, concur I

27 . a 4. I

28 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT PAULA HARTONG INDIVIDUALLY, ETC., Appellant, v., CASE NO. 5D12'2815 '" :, WILLIAM BERNHART, M.D., ROY LIPTRAP, P,4., ET AL., Appellee, DATE: January 06,2014 BY ORDER OF THE COURT: ORDERED that Appellant's Motion for Rehearing and Rehearing En Banc, filed December 17,2013, and Appellant's Motion for Certification, filed December 17, 2013, are denied. I hereby ceñify that the foregoing is (a true copy of) the original Coutl?a^ *rr.?. l,ta 1,.. PAMEI-A R. MASTERS, CLERK cc: Thomas E.Dukes Celene Humphries Jeffrey L.Gordon Philip F,Moring Sarah C.Pellenbarg Mark R.Ahrens I hereby cerlifl 'ihai tho above and totegolng ls a irue copy oí instrument filed ln my ot{lce' PAMELA R, MASTERS, CLERK D}STRICT COURT OT APPEAL OF FIFTH Per Deputy Clerk