IN THE SUPREME COURT STATE OF FLORIDA CASE NO.: SC L. T. CASE NO.: 4D

Transcription

1 MARTIN MEMORIAL MEDICAL CENTER, INC., v. Petitioner, IN THE SUPREME COURT STATE OF FLORIDA CASE NO.: SC L. T. CASE NO.: 4D ALEXANDER WEBSTER, individually, and as Personal Representative of the Estate of LOUISE WEBSTER, deceased, Respondent. / RESPONDENT S BRIEF ON JURISDICTION Gloria Seidule, Esq. Joel S. Perwin, P.A. Law Office of Gloria Seidule 169 E. Flagler Street 729 S. Federal Highway Suite 1422 Suite 210 Miami, FL Stuart, FL Tel: (305) Fax: (305) Kevin O'Connor, Esq. Foley Mansfield By: Joel S. Perwin 4770 Biscayne Boulevard Fla. Bar No.: Ste 1000 Miami, FL 33137

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... i I. SUMMARY OF ARGUMENT... 1 II. ARGUMENT... 3 III. CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE

3 TABLE OF AUTHORITIES Cases Gooding v. University Hospital Building, Inc., 445 So. 2d 1015 (Fla. 1984)...passim Holl v. Talcott, 191 So. 2d 40 (Fla. 1966)... 6 Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So. 2d 1138 (Fla. 2d DCA 2000)... 7 Schroeder v. Peoplease Corp., 18 So. 3d 1165 (Fla. 1st DCA 2009)... 7 Spradley v. Stick, 622 So. 2d 610 (Fla. 1st DCA 1993)... 7 University of Miami v. Bogorff, 583 So. 2d 1000 (Fla. 1991)... 3 Vasquez v. Sorrells Grove Care, Inc., 28 So. 3d 222 (Fla. 2d DCA 2010)... 7 Visingardi v. Tirone, 193 So. 2d 601 (Fla. 1966)...passim Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977)... 1

4 I. SUMMARY OF ARGUMENT Petitioner Martin Memorial s jurisdictional argument is premised on the District Court s passing comment that it appears the trial court misplaced the burden of proof on Summary Judgment. Petition at 2, 6, quoting App. 2. Martin Memorial has converted that equivocal suggestion into a controlling disposition-- that the District Court revers[ed] the summary judgment based on a claimed misplacement of the burden (Petition at 3). Martin Memorial has advanced this thesis notwithstanding that a District Court reviews an Order of Summary Judgment de novo, see Wills v. Sears, Roebuck & Co., 351 So. 2d 29 (Fla. 1977), itself applying the appropriate standard of review. Thus, although a District Court may fault the legal standard adopted by the trial court, its holding derives from its own de novo application of the proper standard. Here, the District Court did not leave that application to inference. After reviewing de novo the evidence offered by Martin Memorial, the District Court held that the defendant hospital failed to establish that there was no issue of fact regarding causation (App. 2). It said only in passing that the trial court appears to have applied the wrong legal standard. Such an equivocal comment can hardly represent an appellate holding. The District Court did not summarize the evidence offered by Martin Memorial, nor was it required to do so. After reviewing that evidence de novo, and articulating the moving party s burden on Summary Judgment, the District Court

5 stated its conclusion, necessarily ruling, in light of the standard it recognized, that Martin Memorial had not made a showing sufficient to shift the burden to the Plaintiffs on the issue of causation. In the process, the District Court observed that the trial court apparently had looked to the Plaintiffs evidence before considering whether Martin Memorial had made a threshold showing that required it to do so. Having failed to make such a showing, Martin Memorial never shifted the burden to the Plaintiffs to offer evidence that would satisfy the standard of probability stated in Gooding v. University Hospital Building, Inc., 445 So. 2d 1015 (Fla. 1984). Under established principles, until the moving party on Summary Judgment does so, the opposing party s evidence or lack of evidence is simply not a consideration. This is true whether the opposing party has provided its own evidence or not (although of course, all do). Until the moving party has sustained its threshold burden of putting forward evidence that would support a verdict in its favor, the opposing party s evidence or lack of evidence is irrelevant. All of this is well established, and unremarkable. It does not amount to a declaration that a summary judgment can never be granted on the basis of insufficient evidence of causation (Petition at 9)--that a defendant can never prevail on causation in a summary judgment proceeding because it cannot prove a negative (Petition at 3) (emphasis in original). See infra. It is not a radical disposition that will generate confusion (Petition at 3), and mystify plague,

6 and befuddle the district courts, with tragic effect (Petition at 10). It is well established Florida law. II. ARGUMENT A. The District Court s Decision. The District Court began with the boilerplate principle that a Summary Judgment is appropriate only upon showing a complete absence of any genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. App. 1, quoting University of Miami v. Bogorff, 583 So. 2d 1000, 1005 (Fla. 1991). The District Court cited Visingardi v. Tirone, 193 So. 2d 601 (Fla. 1966), holding that the plaintiff has a lesser burden when opposing a motion for summary judgment than when opposing a motion for directed verdict at trial... (App. 1). This is because the defendant is the moving party on summary judgment, bearing the threshold burden to introduce sufficient evidence on an issue to put the plaintiff to his proof. The District Court quoted this Court s pronouncement in Visingardi, 193 So. 2d at 604, that although the plaintiff of course has the ultimate burden of proving causation, unless the record that is considered on motion for summary judgment otherwise shows an absence of such causal relationship, the plaintiff, who is opposing the motion, is under no obligation to put in evidence showing such causal relationship. See also citations infra. So far as we know, Visingardi and its progeny have not been overruled. The

7 District Court found that it was not satisfied, which obviates consideration of the Plaintiffs evidence. This established principle does not require a defendant to prove a negative. The defendant s burden is not to guess and preempt what a plaintiff might prove. Its burden is to introduce its own evidence on the point at issue, thus shifting the burden to the plaintiff. On the issue of causation, for example, the defendant might offer expert testimony that the plaintiff s injury was not caused by the defendant s conduct, or evidence that it was caused by something else. That would shift the burden to the plaintiff. Defendants do this every day. In Visingardi, it appears that the defendant did offer sufficient evidence to shift the burden to the plaintiff on the issue of causation; and the plaintiff filed an affidavit supporting his position on that issue. See Visingardi, 193 So. 2d at 605, quoted at App. 2. As the District Court noted (id.), in finding that the plaintiff s affidavit in Visingardi was sufficient to defeat Summary Judgment, [t]he supreme court rejected the doctor s argument that equated a plaintiff s burden at summary judgment with the burden of overcoming a motion for directed verdict at trial (App. 2). In the instant case, in contrast, the trial court cited only two decisions, both of which involve[d] appeals following jury trials, where no evidence was presented that causally linked the negligence with damages (App. 2).

8 After reviewing the Record for itself, the District Court held de novo that the defendant hospital failed to establish that there was no issue of fact regarding causation (App. 2). The Court reversed and remanded, noting that the trial court might reconsider the plaintiff s motion to amend to add a punitive damage claim. 1 B. Martin Memorial s Argument. Martin Memorial s Petition depends on the incorrect assumption that the District Court based its reversal on its comment that the trial court appeared to have applied the wrong standard in appraising its Motion for Summary Judgment. Presumably, such a holding would have warranted reversal with instructions that the trial court re-evaluate the Motion under the correct standard. Instead, consistent with its obligation of de novo review, the District Court itself discussed and applied the appropriate standard for adjudicating a Motion for Summary Judgment; evaluated the Record for itself; and held that the moving party, the defendant hospital failed to establish that there 1 Although the District Court s holding made it unnecessary to review the Plaintiffs evidence, we cannot leave unrebutted Martin Memorial s statements that [t]he District Court s decision in this case acknowledges that the evidence put on by the parties, including Mr. Webster, established nothing more than a mere possibility that the medical center s alleged negligence caused Mrs. Webster s injury (Petition at 3); and the District Court acknowledged that Mr. Webster offered proof of causation at the Summary Judgment stage which was legally insufficient under Gooding [and the two cases cited by the District Court] (Petition at 8). With good reason, neither statement is made with any citation to the District Court s Opinion. There is no statement in the District Court s Opinion which remotely supports either statement.

9 was no issue of fact regarding causation (App. 2). It remanded for consideration only of the motion to add a claim for punitive damages (App. 2). This disposition did not relieve the Plaintiffs of their burden to prove causation, or alter the Gooding standard of doing so. It simply held that Martin Memorial, the moving party on Summary Judgment, had failed to shift the burden to the non-moving parties by failing to offer evidence demonstrating the absence of such causal relationship, Visingardi, 193 So. 2d at 604. Doing so would have shifted the burden to the Plaintiffs to offer contradictory evidence that satisfied the Gooding standard of probability. Visingardi said that unless the defendant shows an absence of such causal relationship, the plaintiff... is under no obligation to put in evidence So. 2d at 604. This principle is thoroughly established and not at all controversial. This Court said in Holl v. Talcott, 191 So. 2d 40, (Fla. 1966), that the burden to prove the non-existence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden. The movant for summary judgment bears the initial burden of demonstrating by competent evidence the nonexistence of any question of material fact, and only when the movant has satisfied this burden does the burden shift to the opposing party to come forward with evidence to the contrary. Spradley v. Stick, 622 So. 2d 610, 612 (Fla. 1st DCA

10 1993), quoted Schroeder v. Peoplease Corp., 18 So. 3d 1165, 1168 (Fla. 1st DCA 2009). The defendant must provide evidence that if accepted, negates even the merest possibility of the existence of a genuine issue of material fact on the point at issue. Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So. 2d 1138, 1140 (Fla. 2d DCA 2000), quoted in Vasquez v. Sorrells Grove Care, Inc., 28 So. 3d 222, 223 (Fla. 2d DCA 2010). Until that happens, the plaintiff has no burden to do anything. 2 This formulation of the moving party s burden is established and uncontroversial. And it does not require a defendant to prove a negative. It does not mean that a plaintiff can always avoid a summary judgment by simply offering little or no evidence, since a defendant can never adduce evidence to prove that the plaintiff cannot meet the more likely than not standard (Petition at 9). The defendant s burden is not to anticipate and negate whatever evidence the 2 The moving party s burden is no different whether the opposing party has offered contrary evidence or not (see Petition at 7-8 n. 4). If the moving party s evidence is insufficient to shift the burden of proof, then the opposing party s contrary evidence is irrelevant. It never comes into play. Every non-moving party offers evidence, in an abundance of caution. That hardly relieves the moving party of its threshold duty. Therefore, even if the trial court was correct that the plaintiff s evidence showed only a mere possibility of causation (see Petition at 1, 2, 5, 6), and even if the District Court had found no fault with that conclusion (see Petition at 2, 3) (in fact, the District Court said no such thing, see supra note 1), the sufficiency of the plaintiff s evidence would still be irrelevant unless and until the defendant s evidence shifted the burden to the plaintiff.

11 plaintiff might offer. The defendant s burden is to offer its own evidence-- evidence sufficient to support a judgment in its favor. As in any medicalmalpractice case, the defendant might offer expert testimony that its conduct was not a cause of the plaintiff s injury, or evidence that there was some other cause. Either would shift the burden to the plaintiff; and if the plaintiff failed to controvert such evidence (at a level of probability, under Gooding), then the defendant would be entitled to Summary Judgment. That hardly means that a defendant could never prevail on Summary Judgment on the issue of causation, or any other issue (see Petition at 3, 9). To the contrary, the defendant will win whenever he proffers sufficient evidence to shift the burden to the plaintiff, and the plaintiff provides no countervailing evidence of probability under the Gooding standard--the same standard that applies at trial. As Visingardi holds, this threshold burden is what distinguishes a plaintiff s burden as the non-moving party on Summary Judgment, from the plaintiff s burden as the moving party at trial. On Summary Judgment, the defendant must proffer evidence to show an absence of [a] causal relationship, or the plaintiff, who is opposing the motion, is under no obligation to put in evidence showing such causal relationship. Visingardi, 193 So. 2d at 604. See citations supra. Martin Memorial has offered no authority that Gooding overruled Visingardi, and disapproved of the other Florida decisions articulating the moving

12 party s burden on Summary Judgment. Martin Memorial is correct that [t]he Gooding standard is not limited to motions for a directed verdict which tests the plaintiff s causation evidence after a trial.... It is equally applicable in a summary judgment proceeding in order to preclude an unnecessary jury trial (Petition at 3 ; see id. at 1, 4-5, 6-7, 8). But even Martin Memorial acknowledges (in a footnote) that a plaintiff... has no obligation to put on evidence of a causal relationship unless the record shows an absence of a causal relationship ( Petition at 7 n. 4). The standard of proof remains the same, but the Plaintiff has no burden to satisfy that standard until the moving party offers sufficient evidence to require it. Here, regardless of what standard the trial court applied, the District Court properly evaluated Martin Memorial s evidence under the correct standard, and held that the defendant hospital failed to establish that there was no issue of fact regarding causation (App. 2). The burden never shifted to the Plaintiffs; the Gooding standard never came into play. This is not a repudiation of the burden of proof imposed on a plaintiff. It is a difference in the point at which the plaintiff must offer evidence to satisfy his burden, mindful that a defendant who moves for Summary Judgment bears the threshold burden as the moving party. There is nothing in this established formulation that should mystify, plague, or befuddle attorneys or courts (Petition at 10). The District Court s disposition was entirely consistent with

13 established precedent, and conflicts with no decision of this Court or any other District Court of Appeal. denied. III. CONCLUSION It is respectfully submitted that Martin Memorial s Petition should be Respectfully submitted Gloria Seidule, Esq. Joel S. Perwin, P.A. Law Office of Gloria Seidule 169 E. Flagler Street, Suite S. Federal Highway Miami, FL Suite 210 Tel: (305) Stuart, FL Fax: (305) Kevin O'Connor, Esq. Foley Mansfield By: 4770 Biscayne Boulevard Joel S. Perwin Suite 1000 Fla. Bar No.: Miami, FL 33137

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. mail upon Heidi J. Livingston, Esq., and Janet W. Adams, Esq., Hill, Adams, Hall & Schieffelin, P.A., P.O. Box 1090, Winter Park, FL ; and Arthur J. England, Esq., Greenberg Traurig, 333 S.E. 2nd Avenue, 333 Avenue of the Americas, Suite 4400, Miami FL on this 23rd day of June, By: Joel S. Perwin Fla. Bar No.: CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Brief complies with the font requirements of Fla. R. App. P (a)(2). By: Joel S. Perwin Fla. Bar No: