In the Supreme Court of Florida No. SC07-1048 TENET HEALTHSYSTEM HOSPITALS, INC. d/b/a/ WEST BOCA MEDICAL CENTER, etc., et al., Petitioner, v. DCA No. 4D04-1673 Cir. Ct. No. CL 00-9780 AA JUDITH WAX, etc., et al., Respondents. / PETITIONER S BRIEF ON JURISDICTION James C. Sawran, Esq. Jason McGrath, Esq. Robert C. Weill, Esq. MCINTOSH, SAWRAN, PELTZ & CARTAYA, P.A. 1776 E. Sunrise Blvd. Post Office Box 7990 Ft. Lauderdale, FL 33338
TABLE OF CONTENTS Table of Citations.iii Statement of the Case and Facts...1 Summary of Argument...1 Argument...2 I. THE FOURTH DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH A SUPREME COURT DECISION AND DECISIONS OF OTHER DISTRICT COURTS ON TWO QUESTIONS OF LAW... 2 A. The Decision Below Which Found that the Trial Court Abused Its Discretion in Excluding Certain Expert Testimony Because It Was Arguably Inferable From the Expert s Pretrial Designation Expressly and Directly Conflicts With Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980), and Other District Court Decisions... 2 B. The Decision Below Which Found that Certain Rebuttal Expert Testimony Was Not Cumulative Even Though Plaintiff Had Two Other Experts Testify To It in Her Case-In-Chief Expressly and Directly Conflicts With Other District Court Decisions... 5 II. THIS COURT SHOULD EXERCISE ITS DISCRETION TO REVIEW THE DISTRICT COURT S DECISION...7 Conclusion...9 Certificate of Service... 10 Certificate of Compliance..10 Appendix: Wax v. Tenet Health System Hospitals, Inc., 955 So. 2d 1 (Fla. 4th DCA May 17, 2006)...App. 1-10 ii
TABLE OF CITATIONS Cases Page(s) Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)................................7 Brown v. Brown, 472 So. 2d 873 (Fla. 2d DCA 1985)......................... 4 Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)........................1, 2, 3, 4, 5 Castillo v. Bush, 902 So. 2d 317 (Fla. 5th DCA 2005)......................... 6 Connelly v. Old Bridge Village Co-Op, Inc., 915 So. 2d 652 (Fla. 2d DCA 2005)......................... 4 Driscoll v. Morris, 114 So. 2d 314 (Fla. 3d DCA 1959)..........................6 Files v. State, 586 So. 2d 352 (Fla. 1st DCA 1991).......................... 3 Griefer v. DiPietro, 708 So. 2d 666 (Fla. 4th DCA 1998)......................... 6 McDonald v. Pickens, 544 So. 2d 261 (Fla. 1st DCA 1989)......................... 4 Rhodes v. Asplundh Tree Expert Co., 528 So. 2d 459 (Fla. 3d DCA 1988)..........................6 Statute(s) 57.105, Fla. Stat.............................................4 iii
STATEMENT OF THE CASE AND FACTS Petitioner refers the Court to the facts in the decision below as its statement of the case and facts. (See App. 3 et seq.). SUMMARY OF ARGUMENT The decision below conflicts with Florida decisions on two questions of law. The Fourth District found that the trial court abused its discretion in excluding certain expert testimony because it was arguably inferable from the expert s pretrial designation. This conclusion expressly and directly conflicts with Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980), and other district court decisions, which hold that if reasonable persons could disagree or an issue is arguable, then there can be no abuse of discretion. The decision below also found that a certain expert s testimony was not cumulative because although Plaintiff had two other experts testify on the same issue in her case-in-chief, the testimony would have been her only attempt to address the issue by an anesthesiologist. This finding expressly and directly conflicts with Florida decisions disallowing rebuttal testimony if any evidence is presented on the issue during the plaintiff s case-in-chief, especially when that evidence was introduced by way of other experts in the same field (i.e., medicine). This Court should exercise its discretion and accept review of the decision below. By ordering that trials be interrupted whenever there is an arguable issue 1
of non-disclosure, the district court s decision has caused trials to be needlessly prolonged and has encouraged parties to adopt a trial-by-ambush strategy. Likewise, by narrowing the test for cumulativeness of rebuttal expert testimony, the court below has encouraged plaintiffs to conduct trials like a sporting match, holding back certain expert testimony from their case-in-chief only to present it on rebuttal. Finally, the Fourth District s decision implied a new form of strict liability for hospitals based on the negligent conduct of their independent contractors. The new form of liability based on a non-delegable duty theory changes the entire landscape of hospital liability in the State of Florida. This Court needs to review this issue given its far-reaching impact on hospitals throughout the state. ARGUMENT I THE FOURTH DISTRICT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH A SUPREME COURT DECISION AND DECISIONS OF OTHER DISTRICT COURTS ON TWO QUESTIONS OF LAW A. The Decision Below Which Found that the Trial Court Abused Its Discretion in Excluding Certain Expert Testimony Because It Was Arguably Inferable From the Expert s Pretrial Designation Expressly and Directly Conflicts With Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980), and Other District Court Decisions. Over twenty-five years ago, this Court explained the abuse-of-discretion standard in Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980): 2
Discretion... is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Id. at 1203 (citation omitted & emphasis added). When a particular trial court ruling is arguable from the appellate court s perspective, then, ipso facto, there can be no abuse of discretion since reasonable men could differ as to the propriety of the trial court s action. In the decis ion below, the Fourth District found that the trial court had abused its discretion in excluding Dr. Sterba s testimony because the testimony was arguably inferable from his pre-trial designation. 1 (App. 4). However, because the point was arguable and therefore reasonable persons could differ, there could be no abuse of discretion, thereby creating conflict with Canakaris and other district court decisions which have specifically found that when an issue is arguable, the trial court s discretion was not abused. In Files v. State, 586 So. 2d 352 (Fla. 1st DCA 1991), approved as modified, 613 So. 2d 1301 (Fla. 1992), one of the issues on appeal concerned whether the prosecutor s use of a peremptory challenge was racially motivated. The district 1 Petitioner notes that, curiously, the district court s decision never explicitly states the abuse of discretion standard of review. It cannot be disputed, however, that this issue was accurately framed by all the parties, including the Respondent, as being subject to the abuse-of-discretion standard. 3
court found that the trial court did not abuse its discretion in accepting the prosecutor s reason for the challenge as nondiscriminatory: [B]ecause the combination of unemployment, and divorce may arguably indicate some prospect of a level of detachment from the proceedings not based on race, we cannot say that reasonable persons would not differ as to the propriety of this reason for excusing the juror. Id. at 357 (second emphasis added); see also id. ( [W]e find that reasonable persons could arguably agree with the trial court s action. ). Other district court decisions which have applied the abuse of discretion standard in accordance with Canakaris, also conflict with the decision below: Connelly v. Old Bridge Village Co-Op, Inc., 915 So. 2d 652, 653-54 (Fla. 2d DCA 2005) (reversing fee award under 57.105 which is reviewed for an abuse of discretion because plaintiffs pursuit of declaratory decree and their decision to include certain defendants were arguably supportable under the facts and law). McDonald v. Pickens, 544 So. 2d 261, 264 (Fla. 1st DCA 1989) (finding no abuse of discretion in trial court s denial of motion for new trial because it can reasonably be argued that expert witness deposition testimony was not false). Brown v. Brown, 472 So. 2d 873, 875 (Fla. 2d DCA 1985) (refusing to find that the trial court abused its discretion in awarding alimony and child 4
support when it is arguable that the trial court s award approaches the outer limits of permissible generosity ) (all emphases added). In short, by finding that the trial court abused its discretion in excluding Dr. Sterba s expert testimony because it was arguably inferable from his designation, the Fourth District has rewritten the very essence of the abuse of discretion standard of review and created express and direct conflict with Canakaris and other district court decisions. B. The Decision Below Which Found that Certain Rebuttal Expert Testimony Was Not Cumulative Even Though Plaintiff Had Two Other Experts Testify To The Same Issue in Her Case-In-Chief Expressly and Directly Conflicts With Other District Court Decisions The Fourth District found that Dr. Ernst s testimony on the vagus nerve was not cumulative because although Plaintiff had two other experts testify to it in her case-in-chief, Dr. Ernst would have been her only specific attempt to address the vagus nerve theory from the perspective of anesthesiology. (App. 5). To support this finding, the Fourth District stated: To be cumulative the substance, function and effect of the previous evidence should be the same. (App. 5). However, the analysis of whether rebuttal testimony should be allowed is not governed by this narrow standard. In ruling the way it has, the Fourth District has created express and direct conflict with Florida decisions which disallow rebuttal testimony if any evidence is presented on the issue during the plaintiff s 5
case-in-chief. See, e.g., Castillo v. Bush, 902 So. 2d 317, 324 (Fla. 5th DCA 2005) (rebuttal expert testimony properly excluded where plaintiff elicited testimony from a different expert in her case-in-chief on the same issue); Rhodes v. Asplundh Tree Expert Co., 528 So. 2d 459, 460 (Fla. 3d DCA 1988) (trial court did not abuse its discretion in excluding rebuttal expert testimony when plaintiffs had already presented expert testimony on the issue in their case-in-chief); Driscoll v. Morris, 114 So. 2d 314, 315-16 (Fla. 3d DCA 1959) (trial court did not abuse its discretion in excluding rebuttal testimony on defendant s failure to obey stop sign when same testimony could have been inferred from plaintiff s case-in-chief). The analysis under Florida law does not turn on whether a particular expert, in a particular specialty, testified. See Driscoll, 114 So. 2d at 315 ( It is not the purpose of rebuttal testimony to add additional facts to those submitted by the plaintiff in his case-in-chief unless such additional facts are required by the new matter developed by the defendant. ). 2 2 Simply because Dr. Ernst s rebuttal testimony may have gone to the heart of the principal defense does not negate the decisional conflict. Such a conclusion would place the proverbial cart before the horse i.e., the conclusion can only be reached if the rebuttal was not cumulative, which it was not under established precedent. See Griefer v. DiPietro, 708 So. 2d 666, 672 (Fla. 4th DCA 1998) ( Although a trial court has broad discretion regarding the admissibility of rebuttal testimony, it abuses that discretion when it limits non-cumulative rebuttal that goes to the heart of the principal defense. ) (emphasis added). 6
II THIS COURT SHOULD EXERCISE ITS DISCRETION TO REVIEW THE DISTRICT COURT S DECISION In ruling that the certain expert testimony was arguably inferable from the expert s pretrial designation, the Fourth District also declared that the trial court abused its discretion by not adjourning the trial to allow additional discovery testimony of the proposed witness or giving the party claiming to have been aggrieved by the designation the right to call additional experts. (App. 4). The Fourth District s decision has also substantially broadened the scope of rebuttal expert testimony by declaring that rebuttal testimony is not cumulative unless the substance, function and effect of the previous evidence is the same. (App. 5). As discussed below, the district court s new approaches to dealing with undisclosed and rebuttal expert testimony will affect the administration of justice throughout the state. Instead of fostering the orderly and efficient trial of cases, see Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla. 1981), the Fourth District s decision directs trial judges to interrupt trials whenever there is any arguable issue of expert non-disclosure. This will needlessly prolong trials and consume already precious judicial resources. 3 The Fourth District s pronouncement also 3 The Fourth District s dilution of the abuse-of-discretion standard also may result in more reversals at the district court level and therefore more retrials. 7
unwittingly condones gamesmanship and the adoption of a trial-by-ambush strategy, for parties now know that non-disclosure will only harm the innocent opposing party who will be required to engage in frantic discovery to avoid being prejudiced by the tactics of the other party. Likewise, by narrowing the test for determining cumulativeness of rebuttal expert testimony, the Fourth District has encouraged plaintiffs to conduct trials like a sporting match, holding back certain expert testimony from their case-in-chief where it should logically and in fairness be introduced, only to present it on rebuttal. Finally, although not forming the basis of any direct and express conflict, the Fourth District s decision on rehearing implied a new form of strict liability for hospitals based on the negligent conduct of their independent contractors. (App. 5-10). The new form of liability based on a non-delegable duty theory, which should have been imposed by the legislature if at all after having been tested by the crucible of the legislative process, reconstructs the landscape of hospital liability in the State of Florida. 4 Should this Court grant review based on the asserted conflict 4 The general rule in Florida is that hospitals are not vicariously liable for the negligence of their independent contractor physicians. Until the decision below, there were only several limited exceptions to this rule including apparent agency and negligent retention which required specific proof. (App. 6). The district court s imposition of the non-delegable duty in this case based on several broadly worded statutes and regulations has essentially made hospitals strictly liable for the negligence of independent contractor physicians. 8
grounds, Petitioner will ask this Court to exercise its discretion to review this issue of great public importance as well. CONCLUSION For the foregoing reasons, Petitioner respectfully requests that this Court accept jurisdiction in this case. 9
CERTIFICATE OF SERVICE WE HEREBY CERTIFY that copies of the foregoing were mailed to the persons listed on the attached Service List this 19th day of June, 2007. MCINTOSH, SAWRAN, PELTZ & CARTAYA, P.A. Attorneys for Petitioner Tenet 1776 East Sunrise Boulevard P. O. Box 7990 Fort Lauderdale, FL 33338-7990 (954) 765-1001 Broward (954) 765-1005 Facsimile By: JAMES C. SAWRAN Florida Bar No. 352225 JASON MCGRATH Florida Bar No. 0097349 ROBERT C. WEILL Florida Bar No. 9962 CERTIFICATE OF COMPLIANCE Petitioner hereby certifies that the font used in this brief is Times New Roman 14-point pursuant to Florida Rule of Appellate Procedure 9.210(a)(2). By: ROBERT C. WEILL 10
SERVICE LIST Philip M. Burlington, P.A. Attorneys for Respondent/Plaintiff 2001 Palm Beach Lakes Boulevard, Suite 410 West Palm Beach, FL 33409 Tel: 561-721-0400 Fax: 561-721-0465 Jeffrey R. Hickman, Esq. Peterson, Bernard, Vandenberg, Zei, Geisler & Martin Attorneys for Dr. David Ritter, Dr. Peter Warheit and South Palm Beach Anesthesiology, PA 1550 Southern Boulevard, Suite 300 West Palm Beach, FL 33406 Tel: 561-686-5005 Fax: 561-471-5603 Richard K. Slinkman, Esq. Slinkman & Slinkman, P.A. Attorney Ad Litem for Lindsay Morgan Wax, a minor The Horizons Building 1401 Forum Way, Suite 201 West Palm Beach, FL 33401 Tel: 561-686-3400 Fax: 561-686-5683 Marlene S. Reiss, Esq. Stephens, Lynn, Klein, Hoffman & Puya, P.A. 9130 South Dadeland Boulevard Penthouse 2 Miami, Florida 33156 Attorney for Robert Topper, M.D. Tel: 305-670-3700 Fax: 305-670-8592 Jonathan P. Lynn, Esq. Stephens, Lynn, Klein, Hoffman & Puya, P.A. Attorney for Robert Topper, M.D. and Robert Topper, M.D., P.A. 301 East Las Olas Boulevard Suite 800 Fort Lauderdale, FL 33301 Tel : 954-462-4602 Fax: 954-462-4633 George M. Bakalar, Esq. Rutherford Mulhall, P.A. Guardian Ad Litem for Lindsay Morgan Wax, a minor 2600 North Military Trail/ 4 th Floor Boca Raton, FL 33431 Tel: 561-241-1600 Fax: 561-241-3815 11