Every week, Scott J. Edwards, P.A. brings you this summary of selected opinions issued by Florida’s appellate courts in the previous week, EDWARDS-SMALL_002511with a focus on opinions discussing civil procedure, appellate procedure, trial practice, evidence, commercial litigation, insurance litigation, technology, and personal injury litigation.  This article covers the weeks of May 23-June 3, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

Expert Opinions, Sequestration of Witnesses, New Trial Dismex Food, Inc. v. Harris (Fla. 3d DCA June 1, 2016) In this personal injury case, the key issue was whether differences in two post-incident MRIs, taken several months apart, revealed that a new injury occurred between the time the two MRIs were taken. At trial, the plaintiff’s doctor testified for the first time that the earlier MRI could not be relied upon due to its poor diagnostic quality. The next day, the defendant’s expert testified that the earlier MRI was indeed of diagnostic quality, and concluded that his comparison of the two MRIs showed that an intervening injury must have happened at some time after the first MRI.

The trial court granted plaintiff’s motion for new trial. The trial court ruled that the defense expert’s testimony constituted a new opinion not contained in his report, in violation of a motion in limine. Also, the trial court ruled that defense counsel violated an order for sequestration of witnesses by sharing the plaintiff doctor’s opinion on the quality of the first MRI with the defense expert. The rule of sequestration is intended to prevent a witness’s testimony from being influenced by other witness’s testimony. If a witness’s testimony does not substantially differ from what it would have been absent a violation of the sequestration rule, there is no grounds for a new trial or mistrial.

The Third DCA reversed, holding that the defense expert’s testimony about the quality of the first MRI was consistent with his expert report. The defense expert’s report discussed the MRI’s findings in detail, discussing numerous specific findings. Thus, it defies logic and common sense to argue that the defense expert’s testimony that the first MRI was of diagnostic quality was an undisclosed opinion. Likewise, any information purportedly shared by defense counsel with the expert witness did not materially alter the witness’s testimony.

Daubert is Still Not Dead Bunin v. Matrixx Initiatives (Fla. 4th DCA June 1, 2016) The Fourth DCA holds that the trial court did not err in applying the Daubert standard to expert testimony, even though the case was filed before the effective date of the Daubert statute. Daubert is a purely procedural statute because it only relates to the admission of evidence. Therefore, the statute can be applied retroactively.

Parental Consent for Medical Treatment, Medical Provider Battery Angeli v. Kluka (Fla. 1st DCA May 25, 2016): Under Florida law, there is no cause of action for battery against a medical provider if one parent consents to a child’s medical procedure, but the other objects. In reaching its decision, the First DCA analyzed the limited statutory and case law regarding parental or guardian consent for medical treatment, and found that these sources uniformly authorized a singular parent or guardian to provide consent for treatment. The First DCA further concluded that a rule requiring both parents’ consent would place the health care provider in the untenable position of resolving parental disputes.

Lay Opinion Testimony, Daubert R.C. v. State (Fla. 2d DCA May 25, 2016): Florida’s adoption of the Daubert test has not changed long-standing Florida law that lay persons can identify marijuana based upon their personal experience and knowledge. Such testimony is not based on scientific expertise, but rather a laymen’s training and experience. The Second DCA noted that Federal courts have long allowed lay testimony to identify marijuana and other illegal drugs even after their adoption of Daubert.

Continuances Daher v. Pacha NYC (Fla. 3d DCA May 25, 2016) The trial court abused its discretion by dismissing a plaintiff’s case for failure to appear at trial. Plaintiff, a Brazilian citizen, was unable to travel to Florida in time for the trial because approval of his visa was delayed. The trial court refused to continue the case because it had been pending for over three years. Although a trial court has wide discretion on whether to grant or deny a continuance, such discretion is not unlimited. Here, the initial multiyear delay was caused by the defendant’s requested stay. The continuance would not have prejudiced the opposing party, and the delay in visa approval was unexpected and not due to any dilatory actions by plaintiff.

Dismissal Without Prejudice, Kozel Factors FNMA v. Linner (Fla. 2d DCA June 3, 2016) A trial court did not err in dismissing a party’s case without prejudice for failure to appear at a case management conference. The dismissed party argued that the trial court should have applied the factors from the case of Kozel v. Ostendorf, 629 So. 2d 814 (Fla. 1993) before dismissing its case. However, a trial court is only required to engage in a Kozel analysis if the dismissal is with prejudice. Because the case here was dismissed without prejudice, the party may still have its day in court if it chooses to refile the case.

EDWARDS-SMALL_002511Scott J. Edwards is an appellate and civil litigation attorney in Boca Raton, Florida, with a practice focused on personal injury, commercial litigation, technology law, and insurance law.  He can be reached at scott@scottjedwards.com or 561-609-0760.