IN THE SUPREME COURT OF FLORIDA CASE NO. SC

IN THE SUPREME COURT OF FLORIDA CASE NO. SC11-2188 ROBERT FRIEDRICH and L.T. CASE NOS: HEATHER FRIEDRICH, his wife, 4th DCA CASE NO. 4D09-3661 15th CIR. CASE NO. 50 2005 CA 006954 MB Petitioners, v. FETTERMAN AND ASSOCIATES, P.A., Respondent. PETITIONERS' REPLY BRIEF ON THE MERITS REBECCA MERCIER VARGAS and JANE KREUSLER-WALSH of KREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 West Palrn Beach, FL 33401-5913 (561) 659-5455 and SCOTT B. SMITH and MARGARET M. BICHLER of LYTAL, REITER, SMITH, IVEY & FRONRATH 515 North Flagler Drive, 10th Floor West Palm Beach, FL 33401 (561) 655-1990

TABLEOFCONTENTS Page Argument 1 Point on Review 1 THE JURY MUST DECIDE THE QUESTION OF NEGLIGENCE IN A COLLAPSING CHAIR CASE WHEN THE PLAINTIFF PRESENTS EVIDENCE THAT THE DEFENDANT WOULD HAVE DISCOVERED THE DANGEROUS CONDITION WITH ANINSPECTION AND THE DISTRICT COURT CANNOT REWEIGH THE EVIDENCE OR IMPOSE A CAUSATION STANDARD HIGHER THAN "MORE LIKELY THAN NOT." A. The Fourth District's decision conflicts with chair collapse cases establishing that the reasonableness of an inspection is a question for the jury. 1 B. The Friedrichs' expert testified that the Fetterman firm would have discovered the dangerous condition of the chair with an inspection. 6 C. The Friedrichs' expert's opinion was not "new" and the Fetterman firm did not preserve this argument. 10 D. There is no need to remand for the Fourth District to consider whether the verdict was against the manifest weight of the evidence. 11 Conclusion 12 Certificate of Service 13 Certificate of Font 14 1

TABLE OF CITATIONS Case Page Aills v. Boemi, 29 So. 3d 1105 (Fla. 2010) 10 Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981) 11 Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla. 1999) 11, 12 Cox v. St. Josephs Hosp., 71 So. 3d 795 (Fla. 2011) 9 Fetterman & Assocs., P.A. v. Friedrich, 69 So. 3d 965 (Fla. 4th DCA 2011) passim Fontana v. Wilson World Maingate Condo., 717 So. 2d 199 (Fla. 5th DCA 1998) 2, 3, 4, 5 Ricks v. Loyola, 822 So. 2d 502 (Fla. 2002) 11 Schneider v. K.S.B. Realty & Investing Corp., 128 So. 2d 398 (Fla. 3d DCA 1961) 2, 5 Wiggins v. Sadow, 925 So. 2d 1152 (Fla. 4th DCA 2006) 12 Yuniter v. A & A Edgewater of Fla., Inc., 707 So. 2d 763 (Fla. 2d DCA 1998) 2, 4, 5 11

ARGUMENT POINT ON REVIEW THE JURY MUST DECIDE THE QUESTION OF NEGLIGENCE IN A COLLAPSING CHAIR CASE WHEN THE PLAINTIFF PRESENTS EVIDENCE THAT THE DEFENDANT WOULD HAVE DISCOVERED THE DANGEROUS CONDITION WITH AN INSPECTION AND THE DISTRICT COURT CANNOT REWEIGH THE EVIDENCE OR IMPOSE A CAUSATION STANDARD HIGHER THAN "MORE LIKELY THAN NOT." A. The Fourth District's decision conflicts with chair collapse cases establishing that the reasonableness of an inspection is a question for the jury. The Fetterman firm cannot escape that the Friedrichs' engineering expert, Mr. Sasso, testified that "a 'hands-on inspection' of the chair before the accident should have revealed the weak joint" in the conference room chair (A:1; see A:3; T2:101, 111-13, 123, 128, 135, 144). I The Fetterman firm even concedes that the Friedrichs' expert "gave the jury testimony upon which they could base a finding ofnegligence" (AB:1). Indeed, the Fourth District cited this very testimony in its decision (A:1). The decision also acknowledged that the Friedrichs adduced evidence that a reasonable business, including the Fetterman firm, should periodically inspect its furniture for defects (A:1- All symbols are used as stated in the Preliminary Statement ofthe Initial Brief with the following additions: AB - the Fetterman firm's Answer Brief; IB - the Friedrichs' Initial Brief. All emphasis is supplied unless stated otherwise. 1

3). Yet, the Fourth District reversed for entry of a directed verdict for the Fetterman firm because, the decision claimed, the Friedrichs presented no evidence of how long the dangerous condition existed (A:4). This holding conflicts with decisions from other districts involving collapsing chairs, which make clear that the plaintiff does not have to prove exactly how long the dangerous condition existed. See, e.g., Fontana v. Wilson World Maingate Condo., 717 So. 2d 199, 199-200 (Fla. 5th DCA 1998); Yuniter v. A & A Edgewater of Fla., Inc., 707 So. 2d 763, 764 (Fla. 2d DCA 1998); Schneider v. K.S.B. Realty & Investing Corp., 128 So. 2d 398, 399 (Fla. 3d DCA 1961). In all three decisions, the plaintiffs presented evidence that a reasonable inspection would have revealed the dangerous condition in the chair. The decisions all held that where, as here, the plaintiff presented evidence that the failure to conduct a reasonable inspection caused the injury, the question of negligence is for the jury. See, e.g., Fontana, 717 So. 2d at 199-200; Yuniter, 707 So. 2d at 764; Schneider, 128 So. 2d at 399. None of these cases holds that the plaintiff must prove how long the dangerous condition existed. 2

The Fetterman firm tries to distinguish these cases as purportedly involving "some evidence of probability as to what an inspection would have found." (AB:17) (emphasis in original). The Fetterman firm claims the Friedrichs' expert testified that "it is impossible to know whether a proper inspection would have revealed this defect" (AB:18; see AB:23)(emphasis in original). This is not true. The Fourth District made the same error when it stated that the Friedrichs' expert "conceded that it was possible that a flex-test may not have revealed the weak joint since it was not possible to determine when the joint began to weaken to the point that it would have begun to flex under the test" (A:2). Actually, the Friedrichs' expert testified that an inspection would have revealed the dangerous condition in the chair (T2:101, 111-13, 123, 128, 135, 144). The Fetterman firm fails in its attempt to distinguish Fontana as involving a visible problem with the swivel in the chair that collapsed (AB:17-18). The Fontana decision states the defect in the chair "was hidden" and that the defendant's employees "merely looking at the chair would not have observed danger." 717 So. 2d at 200. The Fifth District held that although the defect was hidden it "should have been apparent had [the defendant] checked the chair." Id. at 199. A jury question existed even though "there was no evidence offered as to how long the chair had been defective." Id. at 199. The defendant "had no procedure in place for the inspection or maintenance of its 3

furnishings" and "did not check the condition of its furniture to see that it was in a safe condition." Id. at 200. The court in Fontana reversed a directed verdict for the defendant because "[t]he jury could have found that the owner's ostrich-like approach to the safety of its premises did not meet its obligations to its invitees." Id. Similarly, this case involves a collapsing chair with a dangerous condition not visible to the naked eye, but discoverable with an inspection (A:1, 3; T2:94, 101, 111-13, 123, 128, 135, 144; T7:770-71, 788). The Fetterman firm here took the same "ostrich-like approach to safety" and never inspected the chairs (T2:138-40; T6:723; T7:789-90; T9:1112-13, 1115-17, 1154-55, 1161). Yet, directly contrary to Fontana, the Fourth District in Fetterman reversed for entry of a directed verdict because the expert "provided no time frame concerning how long before the accident such testing would have been effective" (A:3) (emphasis in original). Consistent with Fontana, the Second District in Yuniter did not require the plaintiff to establish how long the defective condition existed. Yuniter, 707 So. 2d at 764. In Yuniter, a chair in a hotel room collapsed when the plaintiff, a hotel guest, stood on it. The defendant had not discovered the dangerous condition in the chair during an inspection six weeks earlier or while housekeeping staff cleaned the chair. See id. The Second District reversed because a question of fact existed as to the 4

reasonableness of the inspection. See id. "Generally questions concerning whether a proper inspection, ifmade, would have revealed alleged defects are considered genuine triable issues." Id. The Fetterman firm distinguishes Yuniter by fabricating its own version of the Freidrichs' expert's testimony. His testimony did not, as the Fetterman firm claims, "establish[] that it is impossible to know whether a proper inspection would have revealed this defect." (AB:18; see AB:23)(emphasis in original). To the contrary, as discussed below in part B, infra, the Friedrichs' expert testified that the dangerous condition would have been discovered with an inspection. Fetterman is indistinguishable from Fontana, Yuniter, and Schneider. As the Fourth District decision recognized, the Friedrichs' expert testified that testing the chair "would have revealed the defect in the chair" and that "periodic inspections of office chairs was reasonable." (A:3). Despite this evidence, the Fourth District reversed the judgment for the Friedrichs and remanded to enter judgment for the Fetterman firm who had never inspected the chair (A:2, 4). The Friedrichs have a right to have the jury resolve any conflicts in the evidence and decide the issue of negligence. This Court should resolve this express and direct conflict among the 5

district court decisions by quashing the Fourth District's decision and remanding for entry ofjudgment for the Friedrichs in accord with the jury's verdict. B. The Friedrichs' expert testified that the Fetterman firm would have discovered the dangerous condition of the chair with an inspection. The Fourth District recognized that the Friedrichs' expert testified that "a 'hands-on inspection' of the chair before the accident should have revealed the weak joint" in the conference room chair (A:1; see A:3). Inconsistently, the Fourth District mischaracterized the Friedrich's expert as having "conceded that it was possible that a flex-test may not have revealed the weak joint since it was not possible to determine when the joint began to weaken to the point that the legs would have begun to flex under the test" (A:2). The Fetterman firm makes the same error and claims, without support in the record, that the Friedrichs' expert testified "it was impossible to determine whether that omission was causally related to the accident" (AB:23; see AB:18). A review ofthe trial transcript reveals that the Friedrichs' expert never made this concession or stated it was impossible to make this determination. To the contrary, he testified that "[h]ad [Fetterman] done a hands-on inspection he would have found that 6

the right side was more flexible than the left side" and "ifhe had done a right side -- an inspection of the chair he would have found it." (T2:128). Both parties' experts agreed that the chair was unsafe and dangerous due to a weak joint that did not fit tightly (A:1; T2:94, 97-107, 109; T7:770-71, 788; T9:1158).2 The Friedrichs' expert testified that "a hands-on inspection of the chair before the accident should have found the weakjoint that caused this chair to fail."(t2:101 ). He explained the reason for his opinion - namely, that the chair's joint had failed slowly over time (T2:97-100, 109-10, 144). The Friedrichs' expert discussed the physical evidence that supported his position: (T2:100). This is dry glue where it over time peeled away from-- that's how I know that the right side fracture was a slow fracture over a period of time where if you compare it to the left-hand side, which was a rupture. On cross-examination, the Friedrichs' expert testified that "from the evidence of the back wood peeling away it took time over - - it could take just seconds to hours to days to weeks" for the chair to fail (T2:127; see T2:130, 137). Despite this, the 2 Both parties' experts examined the chair after the collapse, when it was already in pieces (T2:93). 7

Friedrichs' expert maintained that an inspection would have revealed the danger: Q. Thank you. With regard to whether my client would know that this right joint was loose, isn't that pure speculation on your part? A. Had he done a hands-on inspection he would have found that the right side was more flexible than the left side. (T2:127). (T2:135). Q..... And because you don't know what it looked like after the manufacturer, after the repair process, there would be no way of you being able to testify whether my client knew or should have known or could have done an inspection that would reveal the right sided weakness, isn't that true? A. Just if he had done a right side--an inspection of the chair he would have found it. Q. And that would be pure speculation on your part to believe that that type of a testing would reveal a problem? A. That type of testing will test the flexibility of both joints and if one is significantly more flexible than the other that would show a weaker joint. On redirect, the Friedrichs' expert made clear that because the joint ofthe chair loosened slowly over time, the Fetterman firm should have discovered it: 8

Q. Is it because of the gradual loosening of the right side over time that you believe a simple inspection would have revealed that there's less of a bond on the right side versus the left? A. Yes. There would have been more flexibility on the right side than the left, yes. (T2:144). The Friedrichs' expert's testimony establishes that the Fetterman firm would have discovered the dangerous condition if it had inspected its conference room chairs (T2:101, 111-13, 117-19, 123, 128, 133, 135, 140, 144). In Cox v. St. Josephs Hospital, 71 So. 3d 795, 799-801 (Fla. 2011), this Court reiterated the well-settled principle that the district court cannot reweigh the testimony of an expert witness. If the plaintiff's expert testifies that the defendant's conduct "more likely than not" caused the injury, the resolution ofconflicting expert testimony "is a matter for the jury, not a matter for the appellate court to resolve as a matter of law." Id. at 801. "If the plaintiff has presented evidence that could support a finding that the defendant more likely than not caused the injury, a directed verdict is improper." Id. The Fourth District here made the same mistake as the district court in Cox. The district court cannot take one sentence of testimony and ignore all the other evidence presented in the case. It was for the jury to weigh and evaluate any discrepancies in the testimony. Reversal for a directed verdict was improper. This Court should quash the 9

decision. C. The Friedrichs' expert's opinion was not "new" and the Fetterman firm did not preserve this argument. The Answer Brief discounts the testimony of the Friedrichs' expert as "new opinion" (AB:8-9, 13). His opinion -- that the Fetterman firm would have found the dangerous condition in the chair with an inspection -- was not "new." But even if it were, the Fetterman firm did not preserve this argument. The Friedrichs' expert testified, without objection, that "a hands-on inspection of the chair before the accident should have found the weak joint that caused this chair to fail" (T2:101). When the Friedrichs' expert later testified that "a hands-on inspection of the chair before the accident should have found this weak joint," counsel for the Fetterman firm belatedly objected on two grounds: "speculation" and "lack of predicate" (T2:111-12). The trial court overruled these objections (T2:111-12). The Fetterman firm never objected on the basis that the expert opinion was "new"(t2:101, 111-12). This argument is not preserved. See Aills v. Boemi, 29 So. 3d 1105, 1108-09 (Fla. 2010) (requiring "a timely, contemporaneous objection at the time of the alleged error" that is "sufficiently specific to inform the court ofthe perceived error"). 10

Even if the Fetterman firm had preserved this argument, the opinion of the Friedrichs' expert was not a change in opinion that prejudiced the Fetterman firm under Binger v. King Pest Control, 401 So. 2d 1310, 1313-14 (Fla. 1981). Friedrichs disclosed this opinion before trial (R12:2215; R13:2419, 2443). The The Fetterman firm was not prejudiced because it responded with the contrary opinion of its own expert (T7:779-85). D. There is no need to remand for the Fourth District to consider whether the verdict was against the manifest weight of the evidence. The Fetterman firm also makes a token argument that if this Court quashes the decision ofthe Fourth District, this Court should direct the Fourth District to consider the Fetterman firm's argument that the verdict was against the manifest weight of the evidence. There is no need for this Court to remand for the Fourth District to consider this issue. A trial court rules on a motion for new trial based on manifest weight after "consider[ing] the credibility of the witnesses along with the weight of all the other evidence." Brown v. Estate of Stuckey, 749 So. 2d 490, 497 (Fla. 1999); see also Ricks v. Loyola, 822 So. 2d 502, 506 (Fla. 2002) (recognizing "that trial courts have broad discretion when ruling on motions for new trial"). Appellate courts "must 11

recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion." Brown, 749 So. 2d at 497-98. Where the evidence supporting the jury's verdict conflicts, the trial court acts reasonably in denying a motion for new trial based on manifest weight. See Wiggins v. Sadow, 925 So. 2d 1152, 1155-56 (Fla. 4th DCA 2006). As explained in parts A and B, supra, the Friedrichs presented sufficient evidence for the jury to decide this issue. The evidence fully supports the verdict. There is no need to remand for the Fourth District to consider this argument. This Court should remand with instructions to reinstate the final judgment. CONCLUSION This Court should quash the decision of the Fourth District and reinstate the final judgment for plaintiffs. 12

Respectfully submitted, REBECCA MERCIER VARGAS and JANE KREUSLER-WALSH of KREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, FL 33401-5913 (561) 659-5455 rvargas@kwevpa.com janewalsh@kwevpa.com eservice@kwevpa.com and SCOTT B. SMITH and MARGARET M. BICHLER of LYTAL, REITER, SMITH, IVEY & FRONRATH 515 North Flagler Drive, 10th Floor West Palm Beach, FL 33401 ssmith@foryourrights.com mbichler@foryourrights.com (561) 655-1990 Counsel for petitioners, Robert and Heather Friedrich By: (( BECCA M CIER V Florida Bar No. 0150037 CERTIFICATE OF SERVICE I CERTIFY that a copy ofthe foregoing has been furnished by e-mail this day of December, 2012, to: 13

ELIZABETH K. RUSSO RUSSO APPELLATE FIRM, P.A. 6101 Southwest 76th Street Miami, FL 33143 e-service@russoappeals.com ekr@russoappeals.com Appellate Counsel for respondent, Fetterman & Associates JULIE H. LITTKY-RUBIN CLARK, FOUNTAIN, LA VISTA, PRATHER, KEEN & LITTKY- RUBIN, LLP 1919 N. Flagler Drive, Suite 200 West Palm Beach, FL 33407 ilittkyrubin@clarkfountain.com Attorneys for Amicus Curiae, Florida Justice Association DANIEL C. METHE KARA BERARD ROCKENBACH METHE & ROCKENBACH, P.A. 1555 Palm Beach Lakes Boulevard Suite 400 West Palm Beach, FL 33401-2327 dmethe@flacivillaw.com kbrock@flacivillaw.com Counsel for respondent, Fetterman & Associates By: A REBECCA MERCIER AR S Florida Bar No. 015003 CERTIFICATE OF FONT Petitioners' Reply Brief on the Merits has been typed using the 14-point Times New Roman font. By LC REBECCA MERCIER Florida Bar No. 0150037 14