MANEY & GORDON, P.A. 101 East Kennedy Boulevard Suite 3170 Tampa, Florida Tel: (813) Fax: (813)

Transcription

1 Filing # Electronically Filed 03/11/ :57:08 PM RECEIVED, 3/11/ :58:49, 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., Petitioners, Case No. SC v. L.T. Case No. 5D PAULA HARTONG, individually, and as Personal Representative for the ESTATE OF AMANDA WILKINSON, Respondent. ON REVIEW FROM THE DISTRICT COURT OF APPEAL FIFTH DISTRICT OF FLORIDA RESPONDENT'S JURISDICTIONAL ANSWER BRIEF JEFFREY "JACK" GORDON Florida Bar No i.gordon@maneygordon.com MANEY & GORDON, P.A. 101 East Kennedy Boulevard Suite 3170 Tampa, Florida Tel: (813) Fax: (813) Counsel for Appellant CELENE H. HUMPHRIES Florida Bar No chumphries@bhappeals.com SARAH C. PELLENBARG Florida Bar No spellenbarg@bhappeals.com BRANNOCK & HUMPHRIES 100 South Ashley Drive, Suite 1130 Tampa, Florida Tel: (813) Fax: (813) Secondary eservice@bhappeals.com

2 TABLE OF CONTENTS Table of Authorities... iii Statement of the Case and Facts... 1 Summary of the Argument... 3 Argument... 5 Conclusion... '" Certificate of Service Certificate of Compliance

3 TABLE OF AUTHORITIES Cases Bryant v. Fiadini, 405 So. 2d 1341 (Fla. 3d DCA 1981)... 1, 4, 7, 8 Dodi Pub. Co. v. Editorial Am., S. A., 385 So. 2d 1369 (Fla. 1980)... 7 Garrett v. Oak Hall Club, 118 So. 2d 633 (Fla. 1960)... 1, 3,5 Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)... 1,3, 5 Philip Morris USA, Inc. v. Arnitz, 933 So. 2d 693 (Fla. 2d DCA 2006)... 6 Rules Fla. R. Civ. P

4 The Fifth District's opinion in this case is consistent with current Florida law which adopts the doctrine of comparative negligence over contributory fault and allows a party to amend the pleadings to conform with the evidence as late as final judgment. See Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973); Garrett v. Oak Hall Club, 118 So. 2d 633 (Fla. 1960). Because the underlying facts of this case render it distinguishable from Bryant v. Fiadini, 405 So. 2d 1341 (Fla. 3d DCA 1981), there is no express or direct conflict and no basis for discretionary jurisdiction before this Court. STATEMENT OF THE CASE AND FACTS The underlying facts of this case are tragic. A 21-year old girl, Amanda Wilkinson, went to the emergency room with a 10 out of 10 self-described level of pain. She complained of sore throat, cough and congestion, and presented with slightly elevated fever, pulse, respirations and blood pressure. Without performing any tests, a physician's assistant diagnosed her with strep throat and sent her on her way with a pain killer and a prescription for penicillin. (T , 516, , 553; T , ; T , 1441, ; TIl 1458).1 She never saw a doctor during that emergency room visit. (TI ). By noon the next day 1 In order to provide this Court with a more complete factual background, Plaintiff has provided the Court with limited transcript excerpts in her appendix to supplement the factual background found in the Fifth District's opinion. Plaintiff believes these transcript excerpts will assist the Court in understanding the facts supporting the Fifth District's opinion and will also assist this Court in understanding why it should not exercise discretionary review. 1

5 Amanda was dead from undiagnosed MRSA necrotizing pneumonia, which does not respond to penicillin. (T6 627, 631, ; T ). While this case would seemingly have focused on whether or not the Defendants were negligent, instead Defendants focused their case on the fact that Amanda Wilkinson's autopsy revealed that she had the equivalent of one alcoholic beverage in her system mixed with one dosage of the very pain medication the Defendants had prescribed the day before. (T9 1217, ). Even though the neutral medical examiner and Plaintiffs expert testified that this was utterly irrelevant, Defendants found an expert who testified that Ms. Wilkinson's decision to have one or two alcoholic beverages with her pain medicine may have "contributed" to her death, rendering her more susceptible to the pneumonia. (Opinion at 2; T , ; T9 1158, 1179, , 1218, ; T ). Defense counsel then questioned almost every medical witness as to whether it was a "good idea" to mix drugs and alcohol, and questioned almost every lay witness as to Ms. Wilkinson's prior drug and alcohol use. (T , ; T9 1158, 1179, , 1218, ; T ). In other words, Defendants chose to make comparative negligence a central focus of their case. At the eleventh hour, just before closing arguments, Defendants withdrew their comparative negligence defense. (Opinion at 3). Immediately, Plaintiffs counsel requested that the trial court conform the pleadings to the evidence to 2

6 address the issue of comparative negligence. (Opinion at 3). Defendants never argued that they would be prejudiced by such an amendment, and to this day have not given a single reason as to how they would have been prejudiced. The trial court, however, denied Plaintiffs request to amend the pleadings to assert comparative negligence. (Opinion at 3). After the jury returned a defense verdict, the Fifth District ordered a new trial based on the trial court's failure to allow Plaintiff to amend the pleadings to conform with the evidence presented of comparative negligence. (Opinion at 2-3). SUMMARY OF THE ARGUMENT There is no express and direct conflict and this Court should decline to exercise its discretionary jurisdiction. The Fifth District's opinion is consistent with current Florida law which adopts the doctrine of comparative fault and allows a party to amend the pleadings to conform with the evidence. See Hoffman, 280 So. 2d at 436 (adopting comparative fault over contributory fault); Garrett, 118 So. 2d at 635 (discussing conforming the pleadings with the evidence). Defendants proceeded throughout the entire trial questioning the majority of the medical witnesses about whether Ms. Wilkinson may have "contributed" to her death by ingesting a small amount of alcohol with her pain medication, and questioning the majority of the lay witnesses about Ms. Wilkinson's drug and alcohol history. Then, after all the evidence was presented, Defendants attempted 3

7 to withdraw their comparative negligence defense and make the issue of fault an all-or-nothing proposition for the jury. Plaintiffs counsel then appropriately moved to conform the pleadings to assert comparative negligence as reflected by the evidence presented at trial. There is no express and direct conflict with Bryant v. Fiadini, 405 So. 2d 1341 (Fla. 3d DCA 1981). In the underlying case, Defendants only argued comparative negligence - that Ms. Wilkinson may have "contributed" to her death. Defendants did not argue that Ms. Wilkinson was the sole cause of her death, as was the case in Bryant. Moreover, in Bryant, the plaintiff did not move to conform the pleadings to the evidence after the defendants withdrew the comparative negligence defense. These distinctions render Bryant inapplicable to the underlying case. Last, this Court should decline to exercise its discretionary jurisdiction because this case presents a rare and unique situation that will not occur frequently and does not address issues that invoke important public policy concerns or threaten justice. Moreover, in this case, there was an alternative basis for reversal. In its opinion, the Fifth District also held that the trial court erred in admitting prior shelter orders from the Department of Children & Families pursuant to the doctrine of "judicial notice" when those orders contained numerous hearsay allegations and statements concerning Ms. Wilkinson's prior drug and alcohol use and violent 4

8 boyfriend. (Opinion at 4). Therefore, this Court should not exercise its discretionary review because regardless of this Court's decision on the issue presented, the underlying judgment will be reversed and the case will be remanded for a new trial. ARGUMENT The Fifth District's opinion is consistent with current Florida law. Florida has now rejected the doctrine of contributory fault and is a comparative fault state. See Hoffman, 280 So. 2d at 436. The purpose of this transition was to adequately and fairly hold parties responsible for the portion of damages attributable to their conduct. As this Court held in Hoffman: "Whatever may have been the historical justification for [contributory negligence as being a complete bar for relief for plaintiffs], it is almost universally regarded as unjust and inequitable to vest an entire accidental loss on one of the parties whose negligent conduct combined with the negligence of the other party to produce the loss." Id. at 436. Additionally, the current law, as expressed by this Court, provides that a party can amend the pleadings to reflect the evidence as late as final judgment, particularly where such an amendment is "essential to justice." Garrett, 118 So. 2d at 635; see also Fla. R. Civ. P ) ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings."). Therefore, it is entirely 5

9 consistent with this law to also hold that a plaintiff may amend the pleadings to assert a claim for comparative negligence if the Defendant has presented evidence throughout trial consistent with comparative negligence and the Defendant only withdraws that defense after all the evidence has been presented. See Philip Morris USA, Inc. v. Arnitz, 933 So. 2d 693, 698 (Fla. 2d DCA 2006) (holding that a plaintiff may amend the pleadings to assert comparative negligence). To hold otherwise would simply be unfair. In this case, Defendants never argued that Ms. Wilkinson was the sole cause of her own death. Defendants simply argued that she may have contributed to her own death. This is the very definition of comparative fault Ms. Wilkinson may be partially responsible, but not fully responsible. The jury was then placed in a conundrum after Defendants withdrew their comparative fault defense just before closing arguments. What if the jury believed that Ms. Wilkinson was 60% responsible for her death, and Defendants were 40% responsible? The jury verdict form only allowed for them to make an all or nothing choice - either Defendant was negligent or not negligent. For obvious reasons, the jury in the above example would have had no choice but to find Defendants not negligent, even if they believed Defendants were 40% responsible. Such a ruling would be more consistent with the doctrine of contributory fault, which this Court has rejected. Therefore, there is no express and direct conflict with current Florida law in allowing the jury to resolve the case 6

10 based on the evidence presented at the trial when the plaintiff timely requests that the court conform the pleadings to the evidence and there is no prejudice to Defendants. The Fifth District's opinion neither expressly nor directly conflicts with Bryant. See Dodi Pub. Co. v. Editorial Am. S.A., 385 So. 2d 1369, 1369 (Fla. 1980) ("Section 3(b )(3) of article V of the Constitution of the State of Florida...provides that the Supreme Court: 'May review any decision of a district court of appeal... that expressly and directly conflicts with a decision of another district court of appeal or of the supreme court on the same question of law. "') In Bryant, tenants brought an action against their landlord and insurer to recover damages following a fire in an apartment building. The defendants argued that the plaintiffs were responsible for their own injuries because they kept a space heater too close to their bed, which caused the linens to catch fire. Bryant, 405 So. 2d at In Bryant, unlike in the underlying case, the defendant specifically argued that the plaintiff was the sale legal cause of its harm, arguing to the jury that if it were to rule in favor of the plaintiff, it should award plaintiff 100% of the damages. Bryant, 405 So. 2d at In other words, unlike in the instant case, in Bryant, the defendant did not argue that the plaintiff was comparatively negligent; instead, the defendant presented the case as an all or nothing proposition 7

11 - the defendant was either fully responsible for the fire, or not responsible at all. [d. at That is precisely why the Third District ultimately concluded that "[i]t was within the province of the jury to find that the negligence of the adults was the sole proximate cause of the injuries to the children." Id. at Additionally, in Bryant, unlike in the underlying case, there is no evidence that the plaintiff attempted to amend the pleadings to conform with the evidence. In this case, however, the Defendants never argued that the Plaintiff was the sole legal cause of her injuries, but only that she contributed to her own injuries by combining a small amount of alcohol with one dosage of her prescription medication. See Opening Statement, T5 490 ("Ms. Wilkinson's [drug and alcohol use] may have contributed to her, apparently, very rapid downhill course and profoundly changed condition.") (emphasis added); Defense Expert Testimony, T9 1234, , 1277 (noting that Ms. Wilkinson's death may have been "complicated by aspiration and by drug and alcohol intoxication" and may have "contributed' to her death) (emphasis added). Therefore, unlike in Bryant, the underlying case was not presented to the JUry as an all or nothing choice, but instead was presented in a way which screamed of comparative negligence. Accordingly, the jury should have been allowed to consider the issue of comparative negligence as it was presented at trial, especially where the Plaintiff properly moved to amend the pleadings to ret1ect the 8

12 evidence. This common sense conclusion creates no express or direct conflict, and therefore, there is no jurisdiction for review before this Court. Last, regardless of an alleged express or direct conflict, this Court should decline to exercise its discretionary jurisdiction in this case. The instant case presents a rare situation involving a defense counsel who proceeded under a comparative negligence defense throughout the entire trial, presented evidence supporting this theory, and then pulled the rug out from under this defense at the last minute. This unique and uncommon procedural history almost never occurs in the limited number of personal injury/wrongful death cases in which comparative negligence is at issue. Additionally, the tactic is questionable at best and does not invoke public policy concerns or threaten justice in a way that would seemingly be necessary in inspiring this Court to exercise its discretionary jurisdiction. Therefore, because of the unique circumstances of this case, this Court should decline jurisdiction and dedicate its resources to other cases which impact a broader group of people and affect important issues ofjustice. Similarly, this Court should decline to exercise discretionary review because there were other issues justifying a new trial in this case - specifically, the Fifth District noted the trial court's error in admitting into evidence hearsay statements contained in prior dependency shelter orders regarding the deceased's drug and alcohol history and volatile relationship with her boyfriend. (Opinion at 3, 8-9). 9

13 This highly prejudicial information, which was presented to the jury, was harmful in and of itself and constitutes an alternative basis for a new trial in this case. CONCLUSION This case presents no express or direct conflict. This Court should decline to exercise its discretionary review and Defendants' petition for review should be denied. JEFFREY "JACK" GORDON Florida Bar No j.gordon@maneygordon.com MANEY & GORDON, P.A. 101 East Kennedy Boulevard Suite 3170 Tampa, Florida Tel: (813) Fax: (813) Counsel for Respondent C H. HUMPHRIES Florida Bar No chumphries@bhappeals.com SARAH C. PELLENBARG Florida Bar No spellenbarg@bhappeals.com BRANNOCK & HUMPHRIES 100 South Ashley Drive, Suite 1130 Tampa, Florida Tel: (813) Fax: (813) Secondary eservice@bhappeals.com 10

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by tothomase.dukes.iii(tdukes@mmdor1.com) and Philip F. Moring (pmoring@mmdorl.com), McEwan, Martinez & Dukes, P.A., P.O. Box 753, Orlando, Florida on this (( ~ay ofmarch Florida Bar: CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief complies with the font requirements of Florida Rules ofappellate Procedure 9.210(a)(2). 11