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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 week of January 24-29, 2016.  Click here to learn more about Scott Edwards’ appellate law services.

Products Liability, Expert Witnesses, Summary Judgment Lesnik v. Duval Ford (Fla. 1st DCA Jan. 28, 2016) In this products liability case, Plaintiff was injured in a single-vehicle rollover accident. Plaintiff owned a used pickup truck whose original owner had installed an aftermarket lift kit and modified the suspension system. However, Plaintiff also made numerous repairs and aftermarket modifications to the truck. Plaintiff sued the dealership that sold the truck, alleging that the dealer was liable for selling the truck in a defective condition by installing the suspension system. Plaintiff also sued the dealer who sold the used truck to Plaintiff, claiming that the used truck dealer was negligent for failing to inspect the truck and warn of the danger of lifted vehicles.

Plaintiff’s expert witness, however, testified at deposition that he did not have any opinions that the conduct of either dealership caused Plaintiff’s accident. The dealerships moved for summary judgment because the expert’s admission caused there to be no evidence of liability against them. However, Plaintiff filed an affidavit by the expert in response to the summary judgment motions in an attempt to allege new opinions of liability against the used truck dealer. The trial court struck the affidavit, and entered summary judgment in favor of the dealerships.

The First DCA affirmed the striking of the expert’s affidavit, and affirmed the summary judgments. The expert’s affidavit impermissibly contradicted the expert’s deposition testimony without explanation. A litigant confronted with an adverse motion for summary judgment may not contradict or disavow prior sworn testimony with contradictory sworn affidavit testimony. Thus, given the expert’s original deposition testimony, there was no evidence that the lift kit was defective or improperly installed, nor was there any evidence that the used truck dealer breached any duty to inspect or warn Plaintiff of the truck’s condition.

Withdrawal of Fabre Defense, New Trial Edwards v. Rosen (Fla. 2d DCA Jan. 29, 2016): In this medical malpractice wrongful death case, the Second DCA reversed a judgment in favor of a doctor due to gamesmanship caused by the doctor’s withdrawal of his Fabre defenses at trial. Plaintiff’s complaint alleged that the patient’s death was caused by the negligence of several doctors. All but one of the doctors were either granted summary judgment or settled with Plaintiff. Shortly before trial, the doctor’s motion to assert a Fabre defense as to the settling doctors was granted over Plaintiff’s objection. At trial, Plaintiff presented evidence of the party doctor’s negligence, as well as the negligence of the Fabre doctors. However, during his case, the doctor withdrew the Fabre defense. The jury’s verdict was in favor of the doctor.

The Second DCA held that Plaintiff’s motions for mistrial and motion for new trial should have been granted. A Fabre defense must be raised before trial because the defense may affect both the presentation of the case and the trial court’s ruling on evidentiary issues. Thus, the cumulative effect of the last minute amendment to add a Fabre defense, the withdrawal of the defense at trial, and the trial court’s failure to give a curative instruction to the jury generated prejudice that Plaintiff could not cure. The doctor’s tactics here constituted gamesmanship because they allowed him to gain the benefit of having evidence of the other doctor’s negligence introduced at trial, but without the cost of having fault apportioned between himself and the other doctors.

Forum Non Conveniens Abeid-Saba v. Carnival Corp. (Fla. 3d DCA Jan. 27, 2016) The Third DCA upheld orders dismissing lawsuits arising from the Costa Condordia wreck under the doctrine of Forum Non ConveniensItaly is an available and adequate forum for Plaintiffs’ claims, even though it lacks procedural benefits such as class actions. Private factors weigh in favor of litigation in Italy because the vast majority of evidence and witnesses are in Italy. Public interest factors also weigh in favor of Italy over Florida, as most of the Plaintiffs were not United States residents, and virtually all of the allegedly negligent conduct occurred in Italy.

Appellate Sanctions HSBC Bank v. Biscayne Point Condo. Ass’n (Fla. 3d DCA Jan. 27, 2016): Yes, you can get sanctioned as the appellee. In this case, the appellee caused a judgment to be entered at the trial court based on an “indefensible” position. The appellee failed to appear in the appeal, failed to file a brief, and failed to concede error on appeal.

Appellate Procedure Young v. State (Fla. 1st DCA Jan. 25, 2016): A party cannot seek relief on appeal for an error committed by the party.
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.

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