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Citation of Court Cases and Exhibits for Dismissal with Prejudic
Public Health Trust of Dade County v. Valcin, 507 So. 2d 596, 601 (Fla. 1987)
Reed v. Alpha Prof’! Tools, 975 So. 2d 1202, 1205 (Fla. 5th DCA 2008)
CASE NO. SC11-1542. RULE 1.200. PRETRIAL PROCEDURE
Hogan v. Dollar Rent a Car Sys 783 So. 2d 1211 (Fla. Dist. Ct. App. 2001)
Long v. Swofford, 805 So. 2d 882 (Fla. 3d DCA 2003)
Morgan v. Campbell, 816 So. 2d 251, 253 (Fla. 2d DCA 2002)
Cox v. Burke 706 So. 2d 43 (Fla. Dist. Ct. App. 1998)
Destafano v. State Farm Mutual Automobile Insurance Co., 28 Fla. L. Weekly D1077
(Fla.1st DCA April 28, 2003)
Baker v. Myers Tractor Services 765 So. 2d 149 (Fla. Dist. Ct. App. 2000)
10. Landry v. Charlotte Motor Cars, LLC, 226 So. 3d 1053, 1056 n.5 (Fla. 2d DCA 2017)
11 Exhibit 42 & 45 Email from Meraki’ Counsel and Solo
12 Exhibit 02 Sales Presentation & Proposal #1
13 Exhibit 03 Proposal #2
14. Exhibit 42.a Proposal #3
15 Exhibit 20 Johnson Alexandre Deposition
Public Health Trust of Dade Cty. v.
Valcin
507 So. 2d 596 (1987)
PUBLIC HEALTH TRUST OF DADE COUNTY, d/b/a Jackson Memorial Hospital,
Petitioner, v. Gregoria VALCIN, et al., Respondents.
No. 67673.
Supreme Court of Florida.
April 30, 1987.
*597 Miller Walton and George W. Chesrow of Walton, Lantaff, Schroeder & Carson,
Miami, for petitioner.
William A. Bell, Tallahassee, for intervenor/petitioner, Florida Hosp. Ass'n.
Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Virgin & Kray, P.A., Miami, for
respondents.
ADKINS (Ret.). Justice.
In reversing in part the summary judgment resolving all issues in a medical malpractice
action in favor of defendant/petitioner Public Health Trust of Dade County, d/b/a Jackson
Memorial Hospital (Hospital) and against plaintiff/respondent Gregoria Valcin (Valcin),
the district court adopted a scheme of evidentiary presumptions to be utilized when the
absence of surgical operative notes impairs the plaintiff's ability to establish his case. Valcin
v. Public Health Trust, 473 So. 2d 1297 (Fla. 3d DCA 1984). Because the scheme involved
an irrebuttable presumption, found violative of due process in Straughn v. K & K Land
Management, Inc., 326 So. 2d 421 (Fla. 1976), we find jurisdiction based on conflict. Art. V,
§ 3(b)(3), Fla. Const. We approve in part and quash in part the decision under review.
Ayear and one-half after undergoing tubal ligation surgery in an effort to be sterilized,
respondent Valcin suffered a ruptured ectopic pregnancy which nearly caused her death.
She, joined by her husband, sued petitioner Hospital on the grounds that its agents had 1)
breached an alleged warranty as to the effectiveness of the operation, 2) failed to obtain a
truly informed consent, and 3) negligently performed the operation. While the district
court found the summary judgment on the first claim proper in the absence of the written
guarantee required under section 725.01, Florida Statutes (1981), it found genuine issues of
material fact requiring jury resolution in the latter two claims.
First, the district court found the alleged oral warranties sufficient to raise a question of
fraud vitiating an informed consent under the statute then in effect, section 768.46(4)(a),
Florida Statutes (1981). The statute provided as follows:
A consent which is evidenced in writing and meets the requirements of subsection (3) shall,
if validly signed by the patient or another authorized person, be conclusively presumed to
be a valid consent. This presumption may be rebutted if there was a fraudulent
misrepresentation of a material fact in obtaining the signature.
The court found the existence of an informed consent additionally called into question by
Valcin's statement that she had never been informed of the specific risk of an ectopic
pregnancy.
Second, the court reversed the summary judgment on the claim of negligent performance
of the operation, which the trial court had apparently granted on the basis that a deposition
of Valcin's sole medical witness "conclusively showed that he could not testify that the
sterilization procedure departed from acceptable medical standards, or that any such
departure proximately caused Valcin's subsequent ectopic pregnancy." 473 So. 2d at 1303.
While noting the general rule that it is the plaintiff's burden to establish medical
malpractice, Atkins v. Humes, 110 So. 2d 663 (Fla. 1959), the district court found that the
lack of an "operative report" by the surgeon in Valcin's file impaired the expert's ability to
determine whether the operation had been performed with due care. Some question exists
in the instant case as to the existence or adequacy of an operative note in the case. Although
such a note "normally records the preoperative diagnosis, a detailed record of his [the
surgeon's] procedure (cut by cut and stitch by stitch *598 almost), the operative findings,
and the condition in which the patient was transferred to the recovery ward ... following
surgery," J. McQuade, Medical Practice for Trial Lawyers § 2-20 (2d ed. 1985), the district
court found that the failure of the instant note to do any of these things hindered the
plaintiff's ability to proceed.
Finding a statutory duty to maintain such records, and holding that "where evidence
peculiarly within the knowledge of the adversary is, as here, not made available to the party
who has the burden of proof, other rules must be fashioned,” 473 So. 2d at 1305 (footnote
omitted), the district court created the following rules. If the hospital is unable to produce
the records, a burden is preliminarily placed upon it to prove by the greater weight of the
evidence that "the records are not missing due to an intentional or deliberate act or
omission" of the hospital or its employees. Id. at 1306. If the fact-finder determines that the
hospital has met this burden, "the fact that the record is missing will merely raise a
presumption that the surgical procedure was negligently performed, which presumption
may be rebutted by the hospital by the greater weight of the evidence." Id. However, if the
employee doctor is found to have deliberately omitted making the report, or the hospital is
found to have deliberately failed to maintain it, "then a conclusive, irrebuttable
presumption that the surgical procedure was negligently performed will arise, and
judgment as to liability shall be entered in favor of Valcin." Id.
We agree that material issues of fact have been raised in regard to the latter two claims,
necessitating resolution of those issues by trial. Whitten v. Progressive Casualty Insurance
Co., 410 So. 2d 501 (Fla. 1982). We must, however, quash in part the district court's
holdings as to the law to be applied in resolving these issues upon remand.
We turn first to the issue of informed consent. Prior to the operation Valcin signed two
consent forms, the first indicating the general hazards of surgery and reciting that "surgery
is not an exact science, and I acknowledge that no guarantees have been made to me
concerning the results of the operation or procedure." The second form, a "Consent for
Authorization for Sterilization," stated that "It has been explained to me by Doctor Sharpe
that this operation [a bilateral tubal ligation] is intended to result in sterility, but this is not
guaranteed."
In spite of these signed consent forms, the district court properly found material questions
of fact raised by Valcin's allegations of oral warranties as to the effectiveness of the
operation, Morganstine v. Rosomoff, 407 So. 2d 941 (Fla. 3d DCA 1981), and her claim,
unrefuted by the language of the signed consent forms, that she had not been informed of
the particular risk of an ectopic pregnancy. Thomas v. Berrios, 348 So. 2d 905 (Fla. 2d DCA
1977). We agree that Valcin's allegations were sufficient to withstand a motion for summary
judgment, at least in the absence of the defendant's having conclusively established either
that an ectopic pregnancy was not a "substantial risk[] ... inherent in the proposed
treatment," section 768.46(3)(a)2, Florida Statutes (1985), or that failure to so inform the
patient "was in accordance with an accepted standard of medical practice... in the same or
similar medical community." § 768.46(3)(a)1.
Upon remand, Valcin will be required to establish through expert testimony the
information which should have been conveyed to her under the circumstances. Valcin, 473
So. 2d at 1302, citing Ditlow v. Kaplan, 181 So. 2d 226 (Fla. 3d DCA 1965); Ritz v. Florida
Patient's Compensation Fund, 436 So. 2d 987 (Fla. 5th DCA 1983), review denied, 450 So.
2d 488 (Fla. 1984).
We note, too, that the relevant statute as presently amended will control the resolution of
the issue of informed consent at trial. Section 768.46(4)(a), Florida Statutes (1985), now
provides that:
A consent which is evidenced in writing and meets the requirements of subsection (3) shall,
if validly signed by the patient or another authorized person, raise a rebuttable
presumption of a valid consent.
*599 (Emphasis supplied.) As we affirm the general principle that "an appellate court, in
reviewing a judgment on direct appeal, will dispose of the case according to the law
prevailing at the time of the appellate disposition," State v. Hospital District of Hardee
County, 201 So. 2d 69 (Fla. 1967); Florida East Coast Railway v. Rouse, 178 So. 2d 882, 883
(Fla. 3d DCA 1965), quashed on other grounds, 194 So. 2d 260 (Fla. 1966), we note that no
conclusive presumption of valid consent, rebuttable only upon a showing of fraud, will
apply to the case. The alleged oral warranties, of course, if accepted by the jury may
properly rebut a finding of valid informed consent.
We next turn to the issue of the negligent performance of the operation and the related
presumptions involving the absence of surgical operative notes. While we share the district
court's concerns as to fairness when "evidence peculiarly within the knowledge of the
adversary is ... not made available to the party which has the burden of proof," 473 So. 2d at
1305, we find that the rules fashioned by that court sweep wider than necessary. For
reasons more fully expressed below, we strike down the conclusive presumption
establishing liability when the records are shown to be missing due to the deliberate acts or
omissions of the hospital or employee doctor. We adopt, with some modification, the
shifting of the burden of producing evidence when essential records are found to be either
missing or inadequate through the defendant's negligence.
We find the conclusive presumption invalid for two reasons. First, it violates due process in
its failure to provide the adverse party any opportunity to rebut the presumption of
negligence. Straughn v. K & K Land Management, Inc., 326 So. 2d 421 (Fla. 1976); Bass v.
General Development Corp., 374 So. 2d 479 (Fla. 1979). Second, such a drastic "short
circuiting" of the jurors' function is simply unnecessary. In those extremely rare instances
that the evidence establishes an intentional interference with a party's access to critical
medical records, a wide range of sanctions is available to the trial court under Florida Rule
of Civil Procedure 1.380(b)(2). See, e.g., Mercer v. Raine, 443 So. 2d 944 (Fla. 1983).
Further, a jury could well infer from such a finding that the records would have contained
indications of negligence. See § 90.301(3), Fla. Stat. (1985); J. McQuade, Medical Practice
for Trial Lawyers § 2-20 (2d ed. 1985) ("Rarely, and usually only in malpractice cases, the
findings [in a surgical note] are inadequately described or omitted altogether. This is a
suspicious circumstance.")
Although we approve the district court's adoption of the rebuttable presumption, applicable
when essential medical records are unavailable due to the adverse parties’ negligence, we
must clarify its application in certain respects. We first stress the limited function of the
presumption. The absence of a surgical note will not necessarily bear on the issues in a
malpractice action based solely on, for example, failure to obtain an informed consent or
failure to properly diagnose an illness. It should apply only when necessary to serve the
purposes of justice. In other words, a plaintiff must first establish to the satisfaction of the
court that the absence of the records hinders his ability to establish a prima facie case. In
Patrick v. Sedwick, 391 P.2d 453, 457 (Alaska 1964), for example, the Alaska Supreme
Court noted that "it was incumbent upon the appellee surgeon to have described accurately
and fully in his report of the operation everything of consequence that he did and which his
trained eye observed during the operation ... [i]f these requirements had been met the
report would ... more likely ... have supplied sufficient facts to have permitted expert
witnesses to testify on the question of negligence."
We stress this point in order to avoid the potential problems involved in confusing the
absence of the records with the true issues at trial. Negligence in failing to make or
maintain medical records does not necessarily bear at all on the question of whether the
medical procedure involved has been conducted negligently. The presumption, shifting the
burden of producing the evidence, is given life only to equalize the parties' respective
positions in regard *600 to the evidence and to allow the plaintiff to proceed.
Our shifting of burdens of producing evidence in the context of medical malpractice actions
is not unprecedented. Several of the policies underlying our decision of Marrero v.
Goldsmith, 486 So. 2d 530 (Fla. 1986), in which we shifted the burden of "initial
explanation" to the defendant doctor when the faultless plaintiff had been injured while
unconscious during surgery, are present in this case. As in Marrero, the doctor's exclusive
knowledge as to the medical procedures involved, the relative ignorance of the plaintiff, and
the lack of direct evidence of negligence in the absence of complete medical records compel
a shifting of the burden of producing evidence as a matter of public policy.
At this point, we should clarify the type of rebuttable presumption necessitated under this
decision. The instant problem should be resolved either by applying a shift in the burden of
producing evidence, section 90.302(1), Florida Statutes (1985), or a shift in the burden of
proof. § 90.302(2), Fla. Stat. (1985). While the distinction sounds merely technical, it is
not. In the former, as applied to this case, the hospital would bear the initial burden of
going forward with the evidence establishing its nonnegligence. If it met this burden by the
greater weight of the evidence, the presumption would vanish, requiring resolution of the
issues as in a typical case. See Gulle v. Boggs, 174 So. 2d 26 (Fla. 1965); C. Ehrhardt, Florida
Evidence § 302.1 (2d ed. 1984). The jury is never told of the presumption.
In contrast, once the burden of proof is shifted under section 90.302(2), the presumption
remains in effect even after the party to whom it has been shifted introduces evidence
tending to disprove the presumed fact, and "the jury must decide whether the evidence
"
introduced is sufficient to meet the burden of proving that the presumed fact did not exist.
Ehrhardt at § 302.2, citing Caldwell v. Division of Retirement, 372 So. 2d 438 (Fla. 1979).
A vanishing presumption will not assist a plaintiff in proving his case. If the plaintiff is in
fact sufficiently "hindered" by the absence of an operative note, odds are that the
defendant's production of some evidence of nonnegligence will not place the plaintiff in a
better position. Testimony based on the selective recollections of the surgeon and his staff
would be considered "substantial" enough to "burst the bubble," thus keeping the
presumption from the jury. See Gulle v. Boggs, 174 So. 2d 26 (Fla. 1965); see also
Baughman v. Vann, 390 So. 2d 750 (Fla. 5th DCA 1980); Brethauer v. Brassell, 347 So. 2d
656 (Fla. 4th DCA 1977). Plaintiff could rarely prove negligence by a preponderance of the
evidence when the presumption has given him nothing more than the self-serving
testimony of the defendant.
Finally, in the usual case where a vanishing presumption is employed to facilitate the
determination of an action, the underlying facts giving rise to the presumption also form
the basis for a logical inference of the fact presumed. Such a logical inference remains after
a vanishing presumption disappears only where the underlying facts are sufficiently
connected to and thus probative of the inferred fact. See Ehrhardt at § 302.1. In a case such
as this, however suspicious the absence of surgical records may appear to a jury, this fact
alone would seem insufficient to form the basis for a logical inference that the operation
was performed negligently. Thus, in most cases such as the one at bar, where there is no
other evidence of negligence, once credible evidence of nonnegligence is introduced, a
directed verdict for the defendant would likely follow. See Ehrhardt at § 302.1.
The second type of rebuttable presumption, as recognized in section 90.302(2), Florida
Statutes, affects the burden of proof, shifting the burden to the party against whom the
presumption operates to prove the nonexistence of the fact presumed. "When evidence
rebutting such a presumption is introduced, the presumption does not automatically
disappear. It is not overcome until the trier of fact believes that the presumed fact has been
overcome by whatever degree of persuasion is required *601 by the substantive law of the
case." Caldwell, 372 So. 2d at 440. Rebuttable presumptions which shift the burden of
proof are "expressions of social policy," rather than mere procedural devices employed "to
facilitate the determination of the particular action." Id. See also, §§ 90.303 and 90.304,
Fla. Stat. (1985).
Asection 90.302(2) presumption shifts the burden of proof, ensuring that the issue of
negligence goes to the jury. This interpretation appears to best implement public policy
that adequate operative notes be kept.
We must next explore the district court's observations as to the hospital's direct rather than
vicarious liability for a surgeon's failure to create an operative note. While a hospital is
indeed statutorily required to maintain medical records including, under Florida
Administrative Code chapter 10D-28.59(3), "medical and surgical treatment notes and
reports,” see 473 So. 2d at 1305, n. 7, only surgeons may in fact prepare such operative
notes, and generally such surgeons are only independent contractors granted the privilege
of practicing in the hospitals rather than employees. Vicarious liability does not therefore
necessarily attach to the hospital for the doctors' acts or omissions. Pinillos v. Cedars of
Lebanon Hospital Corp., 403 So. 2d 365 (Fla. 1981); Wilson v. Lee Memorial Hospital, 65
So. 2d 40 (Fla. 1953); Reed v. Good Samaritan Hospital Association, Inc., 453 So. 2d 229
(Fla. 4th DCA 1984).
The facts underlying the district court's broad observations as to the hospital's direct
liability reflect an atypical situation. That party was left as the sole defendant in the case to
answer for the doctor's carelessness because the operating doctor, an agent/employee of
the public hospital, was properly dismissed under the immunity provisions of section
768.28(9)(a), Florida Statutes (Supp. 1980). In this clear employer/employee context, the
hospital may properly be held liable for the significant omission of its employee doctors
committed within the scope of their employment.
Generally, however, a hospital may not fairly be held liable for a plaintiff's entire damages
solely based on the omissions of an independent contractor merely granted practicing
privileges in the hospital. Because the relationship between hospital and doctor is often
unclear and raises a question for the jury, though, Irving v. Doctors Hospital of Lake
Worth, Inc., 415 So. 2d 55 (Fla. 4th DCA), review denied, 422 So. 2d 842 (Fla. 1982); Garcia
v. Tarrio, 380 So. 2d 1068 (Fla. 3d DCA 1980), every hospital would do well to ensure that a
patient's medical records contain a sufficient operative note.
We note, too, that in practice no such unfairly imposed "direct liability" will be ordinarily
found; if the doctor is found to be an independent contractor, the hospital may not be
found liable for any negligence on his part, and in fact will not properly be a party in the
case. We make these observations in order to ensure that no hospital not otherwise
properly involved as a defendant in a case is made so based on its purported "direct
liability" for its failure to ensure the existence or adequacy of operative notes.
As a final note, we point out that upon remand the trial court should consider the existence
or adequacy of any operative note (which it has not yet done in this case), and determine
whether or not the absence of an adequate note sufficiently hinders plaintiff's ability to
proceed, thus shifting the burden of producing evidence on the merits of the claim.
Apparently, conflicting evidence exists as to both of these points in the pretrial record.
We therefore approve in part and quash in part the decision here under review, and
remand for further proceedings consistent with this opinion.
It is so ordered.
OVERTON, EHRLICH, SHAW and BARKETT, JJ., concur.
McDONALD, C.J., concurs in result only.
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No. 5D07-864
District Court of Appeal of Florida, Fifth District
Reed v. Alpha
975 So. 2d 1202 (Fla. Dist. Ct. App. 2008)
Decided Mar 7, 2008
No. 5D07-864. After the accident, Reed's counsel obtained
possession of the polishing wheel, the electric
March 7, 2008.
grinder and the safety glasses [collectively "the
Appeal from the Circuit Court, Citrus County, evidence]. On March 6, 2006, after the complaint
Patricia Thomas, J. and answer were filed, Distributors filed a motion
for inspection of the polishing wheel. At the
John Calhoun Bales and C. Samuel Newman, of
October 9, 2006, hearing, Reed's counsel informed
John Bales Attorneys, A Bales Professional
the court that the evidence was lost. Reed's
Association, St. Petersburg, for Appellant.
counsel told the court that the evidence could not
Frank D. Hosley and Martin J. Jaffe, of Seipp be located following a July 2006 move by
Flick Kissane LLP, Lake Mary, for Appellees. counsel's firm from its Tampa office building to
new offices in St. Petersburg, which were still
GRIFFIN, J. undergoing renovations on the date of the move
and for some time afterwards. Reed's counsel
This is an appeal from an order dismissing a hypothesized that the evidence may have been
products liability suit with prejudice as a remedy stolen by a worker.
for spoliation.
Shortly thereafter, on November 7, 2006,
On October 26, 2005, Appellant, plaintiff below, Distributors filed a motion for dismissal with
Travis Reed ["Reed"], filed a products liability prejudice or, in the alternative, for the entry of an
1203action in three counts, strict *1203 liability, appropriate spoliation remedy. In support of their
negligence and negligent failure to warn, against motion, Distributors filed an affidavit by their
each of two defendants below, Alpha Professional expert, Jennifer Yaek, a licensed engineer, who
Tools and Beno J Gundlach Company attested that Distributors were prejudiced as a
[collectively "Distributors"], the distributors of a result of the destruction of evidence. Mainly, this
marble edge polishing wheel. The suit alleged that affidavit catalogued various potential issues that
Reed was operating a grinder with the polishing she could not investigate, such as fracture
wheel attached when the polishing wheel broke initiation sites, abuse, misuse, and possible foreign
into pieces. At least one piece struck Reed in his material that may have been on the wheel's
left eye, causing permanent blindness. The suit surface. Also complained of was the inability to
also alleged that the polishing wheel was inspect the marble being polished at the time of
purchased less than a month before the incident the accident, the grinder and the safety glasses. On
and that Reed was wearing safety glasses while December 11, 2006, Reed filed his response to
operating the grinder and wheel. The complaint
Distributors’ motion along with several affidavits
asserted that the marble edge polishing wheel's by firm employees that attested to the fact that the
design and manufacture were defective. evidence was properly secured prior to the move.
# casetext
Reed v. Alpha 975 So. 2d 1202 (Fla. Dist. Ct. App. 2008)
At the December 13, 2006, hearing on product on which the suit was based, would be
Distributors' dismissal motion, Distributors urged allowed to establish a prima facie case of
dismissal of the suit, claiming prejudice at not negligence through use of the so-called "Greco
having the evidence for their expert to inspect. Inference, m1 even though the defendant
Reed argued that prevailing law disfavored manufacturer had no opportunity to rebut the
dismissal as excessively harsh when the loss of the inference as described in Cassisi v. Maytag Co.,
evidence was not intentional, the plaintiff was able 396 So.2d 1140 (Fla. Ist DCA 1981) because of
to proceed without the lost evidence and where a the loss of the product. See Torres, 762 So.2d at
lesser sanction would eliminate any disadvantage 1016. In Zorres, the majority concluded that use of
to the defense. The trial court took the case under the inference would leave the defendant
advisement, indicating an intention to conduct a completely unable to defend. In order to prevent
tuling hearing after the new year. that unfair result, the Zorres court decided that the
inference would not be available to the plaintiff.
Subsequently, Reed filed a motion to continue
Without it, the plaintiff was unable to proceed.
tuling, requesting the opportunity to permit
Hence, the dismissal.?
discovery of the experts. Reed also filed an
affidavit by his expert who attested that he had 1 Greco v. Bucciconi Eng'g Co., 283 FSupp.
inspected the evidence prior to its loss, had taken 978 (W.D.Pa. 1967).
extensive photographs and that his opinion that the
The Torres majority's decision to affirm
product was defective could be substantiated
dismissal of the design defect claim is less
entirely by the detailed close-up photographs that
easy to understand or explain. Apparently,
he had taken. Distributors opposed a continuance. the majority concluded that the only
On February 19, 2007, the trial court entered its potential design flaw was one that would
order of dismissal, concluding that Distributors manifest itself only after significant wear,
were "completely unable to proceed with a therefore, the presence of the product
defense" without the lost evidence, and dismissed would be indispensable.
the case with prejudice. It does not appear that the
This is not a Greco/Cassisi case. Unlike Torres, in
1204continuance motion was ruled upon. *1204
this case, extensive photographs of the item had
Distributors contend that the controlling authority been made and the plaintiff has asserted that he
in this case is this court's opinion in Torres v. can prove his claim based on the photographs and
Matsushita Elec. Corp., 762 So.2d 1014 (Fla. 5th other specimens of the allegedly defective
DCA 2000), and that the only difference between product. Unlike Torres, identification of the
this case and orres is the product at issue. The product is not an issue. Unlike Zorres, in this case,
trial court appears to have relied on Jorres. It is the parties can be placed on an equal footing by
true that there are some similarities between this limiting the plaintiff to the physical evidence
case and Jorres. Most notably, it is clear in both available to both parties, ic. the photographs.
cases that the loss of the product was inadvertent. Although the defendant will not be able to inspect
It is perhaps understandable, given the length and the product, it will benefit from the inherent
structure of the Jorres decision, to misapprehend limitations on the plaintiffs proof and will be able
its holding, but this case is fundamentally different to match the plaintiffs access to the available
from Torres. The premise on which Zorres was evidence.
based was that the plaintiffs defect claims could
To some extent, the issue on which the trial judge
not be proved by direct evidence since the product
focused is a problem of syntax. In Jorres, without
had been lost. The Yorres court had before it the
question of whether the plaintiff, who had lost the the spoliated product, the defendant was left
te casetext
Reed v. Alpha 975 So. 2d 1202 (Fla. Dist. Ct. App. 2008)
completely unable to defend. This case, on the Our conclusion that the trial court erred by
other hand, is more like a situation where the dismissing this case is also influenced by the
defendant is unable to defend completely. The timing of the dismissal and the state of the record.
defendant enumerates a variety of testing and Here, again unlike Torres, little discovery has
inspections that it cannot do because it does not taken place. Neither party's expert has been
have the product. To the extent that Torres deposed and the filed affidavits are both sparse
contemplates dismissal based on prejudice to the and conclusory. Where, as here, the decision to
defendant, its reach is to the complete inability to dismiss is based on the defense expert's opinion of
defend, not the inability to defend completely. prejudice, the plaintiff should have the opportunity
Spoliation is not a strict liability concept — “lose to test those opinions in discovery. The court
the evidence, lose the case" — no matter whether cannot correctly evaluate the Distributors’ claim of
the plaintiff or the defendant was responsible for prejudice until this has been done. Depending on
the loss. For a variety of reasons, the product is the state of the record once essential discovery has
not always available after the incident causing been done and the record has been developed, the
injury. Depending on the circumstances, a trial court may or may not correctly arrive at the
products liability claim may nevertheless be same conclusion.
proven. The goal in spoliation cases is to assure
REVERSED and REMANDED.
that the non-spoliator does not bear an unfair
1205burden. *1205 SAWAYA and COHEN, JJ., concur.
@ casetext
Supreme Court of Florida
No. SC11-1542
IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL
PROCEDURE—ELECTRONIC DISCOVERY.
[July 5, 2012]
PER CURIAM.
The Florida Bar’s Civil Procedure Rules Committee (Committee) filed an
out-of-cycle report proposing amendments to the Florida Rules of Civil Procedure
to address discovery of electronically stored information (ESI). We have
jurisdiction. See art. V, § 2(a), Fla. Const.
BACKGROUND
The Committee proposes amendments to seven civil procedure rules: 1.200
(Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions
Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of
Documents and Things and Entry Upon Land for Inspection and Other Purposes);
1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena). The
Committee’s proposals were unanimously approved by The Florida Bar Board of
Governors. After the Committee submitted its report to the Court, the Court
published the proposed amendments in The Florida Bar News for public comment.
We received and considered comments from several organizations and members of
the Bar. We have also considered the issues discussed during the oral argument in
this case. As explained below, we adopt the amendments as proposed by the
Committee.
AMENDMENTS
First, rule 1.200 (Pretrial Procedure) is amended to allow the trial court to
consider various issues related to electronic discovery during a pretrial conference,
including the possibility of obtaining admissions of fact, the voluntary exchange of
documents and electronically stored information, and stipulations regarding the
authenticity of documents and electronically stored information; the need for
advance rulings on the admissibility of some documents or ESI; and finally,
specifically as to electronically stored information, the possibility of an agreement
between the parties regarding the extent to which such information should be
preserved and the form in which it should be produced. Similarly, rule 1.201
(Complex Litigation) is also amended to require the parties in a complex civil case
to address the possibility of an agreement between them addressing the extent to
which electronic information should be preserved and the form in which it should
be produced.
-2-
Next, rule 1.280 (General Provisions Governing Discovery) is amended to
expressly authorize discovery of electronically stored information. Rule 1.280 is
also amended to add new subdivision (d), which provides some specific limitations
on discovery of ESI; the subsequent subdivisions are relettered accordingly. Under
new subdivision (d)(1), a person may object to a discovery request seeking
electronically stored information. On a motion to compel discovery, or a motion
for a protective order, the person from whom the discovery is sought must show
that the information sought or the format requested is not reasonably accessible
because of undue burden or cost. If this showing is made, the court may
nonetheless order the discovery if the requesting party shows good cause.
However, the court may specify certain conditions of discovery, including ordering
that some or all of the expenses incurred while complying with the discovery
request be paid by the party seeking the discovery. Under subdivision (d)(2) the
court, in addressing a motion pertaining to discovery of ESI, must limit the
frequency or extent of discovery if it determines that the information sought is: (i)
unreasonably cumulative or duplicative, or can be obtained from another source or
in another manner that is more convenient, less burdensome, or less expensive; or
(ii) the burden or expense of the discovery outweighs its likely benefit.
Rule 1.340 (Interrogatories to Parties) and rule 1.350 (Production of
Documents and Things and Entry Upon Land for Inspection and Other Purposes)
-3-
are both amended to allow for the production of electronically stored information,
either as an answer to an interrogatory or in response to a specific request. Both
tules provide for a party to produce the ESI in the form in which it is ordinarily
maintained or in a reasonably usable form.
Rule 1.380 (Failure to Make Discovery; Sanctions) is amended to provide
that, absent exceptional circumstances, a court may not impose sanctions on a
party for failing to provide electronically stored information that was lost as a
result of the routine, good-faith operation of an electronic information system.
Finally, rule 1.410 (Subpoena) is amended to authorize a subpoena
requesting electronically stored information. A person receiving a subpoena may
object to the discovery of the ESI. The person from whom discovery is sought
must show that the information or the form requested is not reasonably accessible
because of undue costs or burden. If that showing is made, the court may
nonetheless order the discovery if the requesting party shows good cause and
consistent with the limitations provided in rule 1.280(d)(2) discussed above. The
court may also specify conditions of the discovery, including ordering that some or
all of the expenses be paid by the party seeking the discovery.
CONCLUSION
Accordingly, we amend the Florida Rules of Civil Procedure as set forth in
the appendix to this opinion. New language is indicated by underscoring; deletions
-4-
are indicated by struck-through type. The committee notes are offered for
explanation only and are not adopted as an official part of the rules. These
amendments shall become effective September 1, 2012, at 12:02 a.m.
It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA,
and PERRY, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceedings — The Florida Rules of Civil Procedure Committee
Kevin D. Johnson, Chair, Civil Procedure Rules Committee, Tampa, Florida and
John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida,
for Petitioner
Henry P. Trawick, Jr. of Henry P. Trawick, P.A., Sarasota, Florida; Ralph
Artigliere, Blue Ridge, Georgia, William F. Hamilton of Quarles & Brady, LLP,
Tampa, Florida and Ralph C. Losey of Jackson, Lewis, LLP, Orlando, Florida;
Donald R. Fountain, Jr. of Clark, Fountain, La Vista, Prather, Keen & Littky-
Rubin, LLP, West Palm Beach, Florida; L. Johnson Sarber, III, Marks of Marks,
Gray, Conroy & Gibbs, Jacksonville, Florida and L. Gino Marchetti, President,
Lawyers for Civil Justice, Washington, D.C.,
Responding with comments
-5-
APPENDIX
RULE 1.200. PRETRIAL PROCEDURE
(a) Case Management Conference. At any time after responsive
pleadings or motions are due, the court may order, or a party by serving a notice
may convene, a case management conference. The matter to be considered shall be
specified in the order or notice setting the conference. At such a conference the
court may:
M-@ [No Change]
5 consider the possibili of obtaining admissions of fact and
voluntary exchange of documents and electronically stored information, and
stipulations regarding authenticity of documents and electronically stored
information;
(6) consider the need for advance rulings from the court on the
admissibility of documents and electronically stored information;
(7) discuss as to electronically stored information, the possibility of
agreements from the parties regarding the extent to which such evidence should be
preserved, the form in which such evidence should be produced, and whethe
discovery of such information should be conducted in phases or limited to
particular individuals, time periods, or sources;
(58) schedule disclosure of expert witnesses and the discovery of
facts known and opinions held by such experts;
(69) schedule or hear motions in limine;
(410) pursue the possibilities of settlement;
($11) require filing of preliminary stipulations if issues can be
narrowed;
(912) consider referring issues to a magistrate for findings of fact; and
(4013) schedule other conferences or determine other matters that
may aid in the disposition of the action.
-6-
(b) - (d) [No Change]
Committee Notes
1971 - 1992 Amendments. [No Change]
2012 Amendment. Subdivisions (a)(5) to (a)(7) are added to address issues
involving electronically stored information.
Court Commentary
[No Change]
RULE 1.201. COMPLEX LITIGATION
(a) [No Change]
(b) Initial Case Management Report and Conference. The court shall
hold an initial case management conference within 60 days from the date of the
order declaring the action complex.
(ly At least 20 days prior to the date of the initial case management
conference, attorneys for the parties as well as any parties appearing pro se shall
confer and prepare a joint statement, which shall be filed with the clerk of the court
no later than 14 days before the conference, outlining a discovery plan and stating:
()-@O [No Change]
(J)___the possibility of obtaining agreements among the partie
regarding the extent to which such electronically stored information should be
preserved, the form in which such information should be produced, and whethe:
discovery of such information should be conducted in phases or limited to
particular individuals, time periods, or sources:
(JK) suggestions on the advisability and timing of referring
matters to a magistrate, master, other neutral, or mediation;
-7-
(KL) a preliminary estimate of the time required for trial;
(EM) requested date or dates for conferences before trial, a
final pretrial conference, and trial;
QAN) a description of pertinent documents and a list of fact
witnesses the parties believe to be relevant;
(NO) number of experts and fields of expertise; and
(QP) any other information that might be helpful to the court
in setting further conferences and the trial date.
(2)-@) [No Change]
(©) The Case Management Order. The case management order shall
address each matter set forth under rule 1.200(a) and set the action for a pretrial
conference and trial. The case management order also shall specify the following:
(1) Dates by which all parties shall name their expert witnesses and
provide the expert information required by rule 1.280(b)(45). Ifa party has named
an expert witness in a field in which any other parties have not identified experts,
the other parties may name experts in that field within 30 days thereafter. No
additional experts may be named unless good cause is shown.
2)-©) [No Change]
(d) [No Change]
Committee Notes
2012 Amendment. Subdivision (b)(1)(J) is added to address issues
involving electronically stored information.
RULE 1.280. GENERAL PROVISIONS GOVERNING DISCOVERY
(a) [No Change]
-8-
(b) Scope of Discovery. Unless otherwise limited by order of the court in
accordance with these rules, the scope of discovery is as follows:
()-@) [No Change]
(3) Electronically Stored Information. A party may obtain
discovery of electronically stored information in accordance with these rules.
4) Trial Preparation: Materials. Subject to the provisions of
subdivision (b)(45) of this rule, a party may obtain discovery of documents and
tangible things otherwise discoverable under subdivision (b)(1) of this rule and
prepared in anticipation of litigation or for trial by or for another party or by or for
that party’s representative, including that party’s attorney, consultant, surety,
indemnitor, insurer, or agent, only upon a showing that the party seeking discovery
has need of the materials in the preparation of the case and is unable without undue
hardship to obtain the substantial equivalent of the materials by other means. In
ordering discovery of the materials when the required showing has been made, the
court shall protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of an attorney or other representative of a party
concerning the litigation. Without the required showing a party may obtain a copy
of a statement concerning the action or its subject matter previously made by that
party. Upon request without the required showing a person not a party may obtain
a copy of a statement concerning the action or its subject matter previously made
by that person. If the request is refused, the person may move for an order to obtain
a copy. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred
as a result of making the motion. For purposes of this paragraph, a statem
Preview
Filing # 189356441 E-Filed 01/09/2024 09:44:03 AM Citation of Court Cases and Exhibits for Dismissal with Prejudic Public Health Trust of Dade County v. Valcin, 507 So. 2d 596, 601 (Fla. 1987) Reed v. Alpha Prof’! Tools, 975 So. 2d 1202, 1205 (Fla. 5th DCA 2008) CASE NO. SC11-1542. RULE 1.200. PRETRIAL PROCEDURE Hogan v. Dollar Rent a Car Sys 783 So. 2d 1211 (Fla. Dist. Ct. App. 2001) Long v. Swofford, 805 So. 2d 882 (Fla. 3d DCA 2003) Morgan v. Campbell, 816 So. 2d 251, 253 (Fla. 2d DCA 2002) Cox v. Burke 706 So. 2d 43 (Fla. Dist. Ct. App. 1998) Destafano v. State Farm Mutual Automobile Insurance Co., 28 Fla. L. Weekly D1077 (Fla.1st DCA April 28, 2003) Baker v. Myers Tractor Services 765 So. 2d 149 (Fla. Dist. Ct. App. 2000) 10. Landry v. Charlotte Motor Cars, LLC, 226 So. 3d 1053, 1056 n.5 (Fla. 2d DCA 2017) 11 Exhibit 42 & 45 Email from Meraki’ Counsel and Solo 12 Exhibit 02 Sales Presentation & Proposal #1 13 Exhibit 03 Proposal #2 14. Exhibit 42.a Proposal #3 15 Exhibit 20 Johnson Alexandre Deposition Public Health Trust of Dade Cty. v. Valcin 507 So. 2d 596 (1987) PUBLIC HEALTH TRUST OF DADE COUNTY, d/b/a Jackson Memorial Hospital, Petitioner, v. Gregoria VALCIN, et al., Respondents. No. 67673. Supreme Court of Florida. April 30, 1987. *597 Miller Walton and George W. Chesrow of Walton, Lantaff, Schroeder & Carson, Miami, for petitioner. William A. Bell, Tallahassee, for intervenor/petitioner, Florida Hosp. Ass'n. Arnold R. Ginsberg of Horton, Perse & Ginsberg, and Virgin & Kray, P.A., Miami, for respondents. ADKINS (Ret.). Justice. In reversing in part the summary judgment resolving all issues in a medical malpractice action in favor of defendant/petitioner Public Health Trust of Dade County, d/b/a Jackson Memorial Hospital (Hospital) and against plaintiff/respondent Gregoria Valcin (Valcin), the district court adopted a scheme of evidentiary presumptions to be utilized when the absence of surgical operative notes impairs the plaintiff's ability to establish his case. Valcin v. Public Health Trust, 473 So. 2d 1297 (Fla. 3d DCA 1984). Because the scheme involved an irrebuttable presumption, found violative of due process in Straughn v. K & K Land Management, Inc., 326 So. 2d 421 (Fla. 1976), we find jurisdiction based on conflict. Art. V, § 3(b)(3), Fla. Const. We approve in part and quash in part the decision under review. Ayear and one-half after undergoing tubal ligation surgery in an effort to be sterilized, respondent Valcin suffered a ruptured ectopic pregnancy which nearly caused her death. She, joined by her husband, sued petitioner Hospital on the grounds that its agents had 1) breached an alleged warranty as to the effectiveness of the operation, 2) failed to obtain a truly informed consent, and 3) negligently performed the operation. While the district court found the summary judgment on the first claim proper in the absence of the written guarantee required under section 725.01, Florida Statutes (1981), it found genuine issues of material fact requiring jury resolution in the latter two claims. First, the district court found the alleged oral warranties sufficient to raise a question of fraud vitiating an informed consent under the statute then in effect, section 768.46(4)(a), Florida Statutes (1981). The statute provided as follows: A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, be conclusively presumed to be a valid consent. This presumption may be rebutted if there was a fraudulent misrepresentation of a material fact in obtaining the signature. The court found the existence of an informed consent additionally called into question by Valcin's statement that she had never been informed of the specific risk of an ectopic pregnancy. Second, the court reversed the summary judgment on the claim of negligent performance of the operation, which the trial court had apparently granted on the basis that a deposition of Valcin's sole medical witness "conclusively showed that he could not testify that the sterilization procedure departed from acceptable medical standards, or that any such departure proximately caused Valcin's subsequent ectopic pregnancy." 473 So. 2d at 1303. While noting the general rule that it is the plaintiff's burden to establish medical malpractice, Atkins v. Humes, 110 So. 2d 663 (Fla. 1959), the district court found that the lack of an "operative report" by the surgeon in Valcin's file impaired the expert's ability to determine whether the operation had been performed with due care. Some question exists in the instant case as to the existence or adequacy of an operative note in the case. Although such a note "normally records the preoperative diagnosis, a detailed record of his [the surgeon's] procedure (cut by cut and stitch by stitch *598 almost), the operative findings, and the condition in which the patient was transferred to the recovery ward ... following surgery," J. McQuade, Medical Practice for Trial Lawyers § 2-20 (2d ed. 1985), the district court found that the failure of the instant note to do any of these things hindered the plaintiff's ability to proceed. Finding a statutory duty to maintain such records, and holding that "where evidence peculiarly within the knowledge of the adversary is, as here, not made available to the party who has the burden of proof, other rules must be fashioned,” 473 So. 2d at 1305 (footnote omitted), the district court created the following rules. If the hospital is unable to produce the records, a burden is preliminarily placed upon it to prove by the greater weight of the evidence that "the records are not missing due to an intentional or deliberate act or omission" of the hospital or its employees. Id. at 1306. If the fact-finder determines that the hospital has met this burden, "the fact that the record is missing will merely raise a presumption that the surgical procedure was negligently performed, which presumption may be rebutted by the hospital by the greater weight of the evidence." Id. However, if the employee doctor is found to have deliberately omitted making the report, or the hospital is found to have deliberately failed to maintain it, "then a conclusive, irrebuttable presumption that the surgical procedure was negligently performed will arise, and judgment as to liability shall be entered in favor of Valcin." Id. We agree that material issues of fact have been raised in regard to the latter two claims, necessitating resolution of those issues by trial. Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla. 1982). We must, however, quash in part the district court's holdings as to the law to be applied in resolving these issues upon remand. We turn first to the issue of informed consent. Prior to the operation Valcin signed two consent forms, the first indicating the general hazards of surgery and reciting that "surgery is not an exact science, and I acknowledge that no guarantees have been made to me concerning the results of the operation or procedure." The second form, a "Consent for Authorization for Sterilization," stated that "It has been explained to me by Doctor Sharpe that this operation [a bilateral tubal ligation] is intended to result in sterility, but this is not guaranteed." In spite of these signed consent forms, the district court properly found material questions of fact raised by Valcin's allegations of oral warranties as to the effectiveness of the operation, Morganstine v. Rosomoff, 407 So. 2d 941 (Fla. 3d DCA 1981), and her claim, unrefuted by the language of the signed consent forms, that she had not been informed of the particular risk of an ectopic pregnancy. Thomas v. Berrios, 348 So. 2d 905 (Fla. 2d DCA 1977). We agree that Valcin's allegations were sufficient to withstand a motion for summary judgment, at least in the absence of the defendant's having conclusively established either that an ectopic pregnancy was not a "substantial risk[] ... inherent in the proposed treatment," section 768.46(3)(a)2, Florida Statutes (1985), or that failure to so inform the patient "was in accordance with an accepted standard of medical practice... in the same or similar medical community." § 768.46(3)(a)1. Upon remand, Valcin will be required to establish through expert testimony the information which should have been conveyed to her under the circumstances. Valcin, 473 So. 2d at 1302, citing Ditlow v. Kaplan, 181 So. 2d 226 (Fla. 3d DCA 1965); Ritz v. Florida Patient's Compensation Fund, 436 So. 2d 987 (Fla. 5th DCA 1983), review denied, 450 So. 2d 488 (Fla. 1984). We note, too, that the relevant statute as presently amended will control the resolution of the issue of informed consent at trial. Section 768.46(4)(a), Florida Statutes (1985), now provides that: A consent which is evidenced in writing and meets the requirements of subsection (3) shall, if validly signed by the patient or another authorized person, raise a rebuttable presumption of a valid consent. *599 (Emphasis supplied.) As we affirm the general principle that "an appellate court, in reviewing a judgment on direct appeal, will dispose of the case according to the law prevailing at the time of the appellate disposition," State v. Hospital District of Hardee County, 201 So. 2d 69 (Fla. 1967); Florida East Coast Railway v. Rouse, 178 So. 2d 882, 883 (Fla. 3d DCA 1965), quashed on other grounds, 194 So. 2d 260 (Fla. 1966), we note that no conclusive presumption of valid consent, rebuttable only upon a showing of fraud, will apply to the case. The alleged oral warranties, of course, if accepted by the jury may properly rebut a finding of valid informed consent. We next turn to the issue of the negligent performance of the operation and the related presumptions involving the absence of surgical operative notes. While we share the district court's concerns as to fairness when "evidence peculiarly within the knowledge of the adversary is ... not made available to the party which has the burden of proof," 473 So. 2d at 1305, we find that the rules fashioned by that court sweep wider than necessary. For reasons more fully expressed below, we strike down the conclusive presumption establishing liability when the records are shown to be missing due to the deliberate acts or omissions of the hospital or employee doctor. We adopt, with some modification, the shifting of the burden of producing evidence when essential records are found to be either missing or inadequate through the defendant's negligence. We find the conclusive presumption invalid for two reasons. First, it violates due process in its failure to provide the adverse party any opportunity to rebut the presumption of negligence. Straughn v. K & K Land Management, Inc., 326 So. 2d 421 (Fla. 1976); Bass v. General Development Corp., 374 So. 2d 479 (Fla. 1979). Second, such a drastic "short circuiting" of the jurors' function is simply unnecessary. In those extremely rare instances that the evidence establishes an intentional interference with a party's access to critical medical records, a wide range of sanctions is available to the trial court under Florida Rule of Civil Procedure 1.380(b)(2). See, e.g., Mercer v. Raine, 443 So. 2d 944 (Fla. 1983). Further, a jury could well infer from such a finding that the records would have contained indications of negligence. See § 90.301(3), Fla. Stat. (1985); J. McQuade, Medical Practice for Trial Lawyers § 2-20 (2d ed. 1985) ("Rarely, and usually only in malpractice cases, the findings [in a surgical note] are inadequately described or omitted altogether. This is a suspicious circumstance.") Although we approve the district court's adoption of the rebuttable presumption, applicable when essential medical records are unavailable due to the adverse parties’ negligence, we must clarify its application in certain respects. We first stress the limited function of the presumption. The absence of a surgical note will not necessarily bear on the issues in a malpractice action based solely on, for example, failure to obtain an informed consent or failure to properly diagnose an illness. It should apply only when necessary to serve the purposes of justice. In other words, a plaintiff must first establish to the satisfaction of the court that the absence of the records hinders his ability to establish a prima facie case. In Patrick v. Sedwick, 391 P.2d 453, 457 (Alaska 1964), for example, the Alaska Supreme Court noted that "it was incumbent upon the appellee surgeon to have described accurately and fully in his report of the operation everything of consequence that he did and which his trained eye observed during the operation ... [i]f these requirements had been met the report would ... more likely ... have supplied sufficient facts to have permitted expert witnesses to testify on the question of negligence." We stress this point in order to avoid the potential problems involved in confusing the absence of the records with the true issues at trial. Negligence in failing to make or maintain medical records does not necessarily bear at all on the question of whether the medical procedure involved has been conducted negligently. The presumption, shifting the burden of producing the evidence, is given life only to equalize the parties' respective positions in regard *600 to the evidence and to allow the plaintiff to proceed. Our shifting of burdens of producing evidence in the context of medical malpractice actions is not unprecedented. Several of the policies underlying our decision of Marrero v. Goldsmith, 486 So. 2d 530 (Fla. 1986), in which we shifted the burden of "initial explanation" to the defendant doctor when the faultless plaintiff had been injured while unconscious during surgery, are present in this case. As in Marrero, the doctor's exclusive knowledge as to the medical procedures involved, the relative ignorance of the plaintiff, and the lack of direct evidence of negligence in the absence of complete medical records compel a shifting of the burden of producing evidence as a matter of public policy. At this point, we should clarify the type of rebuttable presumption necessitated under this decision. The instant problem should be resolved either by applying a shift in the burden of producing evidence, section 90.302(1), Florida Statutes (1985), or a shift in the burden of proof. § 90.302(2), Fla. Stat. (1985). While the distinction sounds merely technical, it is not. In the former, as applied to this case, the hospital would bear the initial burden of going forward with the evidence establishing its nonnegligence. If it met this burden by the greater weight of the evidence, the presumption would vanish, requiring resolution of the issues as in a typical case. See Gulle v. Boggs, 174 So. 2d 26 (Fla. 1965); C. Ehrhardt, Florida Evidence § 302.1 (2d ed. 1984). The jury is never told of the presumption. In contrast, once the burden of proof is shifted under section 90.302(2), the presumption remains in effect even after the party to whom it has been shifted introduces evidence tending to disprove the presumed fact, and "the jury must decide whether the evidence " introduced is sufficient to meet the burden of proving that the presumed fact did not exist. Ehrhardt at § 302.2, citing Caldwell v. Division of Retirement, 372 So. 2d 438 (Fla. 1979). A vanishing presumption will not assist a plaintiff in proving his case. If the plaintiff is in fact sufficiently "hindered" by the absence of an operative note, odds are that the defendant's production of some evidence of nonnegligence will not place the plaintiff in a better position. Testimony based on the selective recollections of the surgeon and his staff would be considered "substantial" enough to "burst the bubble," thus keeping the presumption from the jury. See Gulle v. Boggs, 174 So. 2d 26 (Fla. 1965); see also Baughman v. Vann, 390 So. 2d 750 (Fla. 5th DCA 1980); Brethauer v. Brassell, 347 So. 2d 656 (Fla. 4th DCA 1977). Plaintiff could rarely prove negligence by a preponderance of the evidence when the presumption has given him nothing more than the self-serving testimony of the defendant. Finally, in the usual case where a vanishing presumption is employed to facilitate the determination of an action, the underlying facts giving rise to the presumption also form the basis for a logical inference of the fact presumed. Such a logical inference remains after a vanishing presumption disappears only where the underlying facts are sufficiently connected to and thus probative of the inferred fact. See Ehrhardt at § 302.1. In a case such as this, however suspicious the absence of surgical records may appear to a jury, this fact alone would seem insufficient to form the basis for a logical inference that the operation was performed negligently. Thus, in most cases such as the one at bar, where there is no other evidence of negligence, once credible evidence of nonnegligence is introduced, a directed verdict for the defendant would likely follow. See Ehrhardt at § 302.1. The second type of rebuttable presumption, as recognized in section 90.302(2), Florida Statutes, affects the burden of proof, shifting the burden to the party against whom the presumption operates to prove the nonexistence of the fact presumed. "When evidence rebutting such a presumption is introduced, the presumption does not automatically disappear. It is not overcome until the trier of fact believes that the presumed fact has been overcome by whatever degree of persuasion is required *601 by the substantive law of the case." Caldwell, 372 So. 2d at 440. Rebuttable presumptions which shift the burden of proof are "expressions of social policy," rather than mere procedural devices employed "to facilitate the determination of the particular action." Id. See also, §§ 90.303 and 90.304, Fla. Stat. (1985). Asection 90.302(2) presumption shifts the burden of proof, ensuring that the issue of negligence goes to the jury. This interpretation appears to best implement public policy that adequate operative notes be kept. We must next explore the district court's observations as to the hospital's direct rather than vicarious liability for a surgeon's failure to create an operative note. While a hospital is indeed statutorily required to maintain medical records including, under Florida Administrative Code chapter 10D-28.59(3), "medical and surgical treatment notes and reports,” see 473 So. 2d at 1305, n. 7, only surgeons may in fact prepare such operative notes, and generally such surgeons are only independent contractors granted the privilege of practicing in the hospitals rather than employees. Vicarious liability does not therefore necessarily attach to the hospital for the doctors' acts or omissions. Pinillos v. Cedars of Lebanon Hospital Corp., 403 So. 2d 365 (Fla. 1981); Wilson v. Lee Memorial Hospital, 65 So. 2d 40 (Fla. 1953); Reed v. Good Samaritan Hospital Association, Inc., 453 So. 2d 229 (Fla. 4th DCA 1984). The facts underlying the district court's broad observations as to the hospital's direct liability reflect an atypical situation. That party was left as the sole defendant in the case to answer for the doctor's carelessness because the operating doctor, an agent/employee of the public hospital, was properly dismissed under the immunity provisions of section 768.28(9)(a), Florida Statutes (Supp. 1980). In this clear employer/employee context, the hospital may properly be held liable for the significant omission of its employee doctors committed within the scope of their employment. Generally, however, a hospital may not fairly be held liable for a plaintiff's entire damages solely based on the omissions of an independent contractor merely granted practicing privileges in the hospital. Because the relationship between hospital and doctor is often unclear and raises a question for the jury, though, Irving v. Doctors Hospital of Lake Worth, Inc., 415 So. 2d 55 (Fla. 4th DCA), review denied, 422 So. 2d 842 (Fla. 1982); Garcia v. Tarrio, 380 So. 2d 1068 (Fla. 3d DCA 1980), every hospital would do well to ensure that a patient's medical records contain a sufficient operative note. We note, too, that in practice no such unfairly imposed "direct liability" will be ordinarily found; if the doctor is found to be an independent contractor, the hospital may not be found liable for any negligence on his part, and in fact will not properly be a party in the case. We make these observations in order to ensure that no hospital not otherwise properly involved as a defendant in a case is made so based on its purported "direct liability" for its failure to ensure the existence or adequacy of operative notes. As a final note, we point out that upon remand the trial court should consider the existence or adequacy of any operative note (which it has not yet done in this case), and determine whether or not the absence of an adequate note sufficiently hinders plaintiff's ability to proceed, thus shifting the burden of producing evidence on the merits of the claim. Apparently, conflicting evidence exists as to both of these points in the pretrial record. We therefore approve in part and quash in part the decision here under review, and remand for further proceedings consistent with this opinion. It is so ordered. OVERTON, EHRLICH, SHAW and BARKETT, JJ., concur. McDONALD, C.J., concurs in result only. Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. No. 5D07-864 District Court of Appeal of Florida, Fifth District Reed v. Alpha 975 So. 2d 1202 (Fla. Dist. Ct. App. 2008) Decided Mar 7, 2008 No. 5D07-864. After the accident, Reed's counsel obtained possession of the polishing wheel, the electric March 7, 2008. grinder and the safety glasses [collectively "the Appeal from the Circuit Court, Citrus County, evidence]. On March 6, 2006, after the complaint Patricia Thomas, J. and answer were filed, Distributors filed a motion for inspection of the polishing wheel. At the John Calhoun Bales and C. Samuel Newman, of October 9, 2006, hearing, Reed's counsel informed John Bales Attorneys, A Bales Professional the court that the evidence was lost. Reed's Association, St. Petersburg, for Appellant. counsel told the court that the evidence could not Frank D. Hosley and Martin J. Jaffe, of Seipp be located following a July 2006 move by Flick Kissane LLP, Lake Mary, for Appellees. counsel's firm from its Tampa office building to new offices in St. Petersburg, which were still GRIFFIN, J. undergoing renovations on the date of the move and for some time afterwards. Reed's counsel This is an appeal from an order dismissing a hypothesized that the evidence may have been products liability suit with prejudice as a remedy stolen by a worker. for spoliation. Shortly thereafter, on November 7, 2006, On October 26, 2005, Appellant, plaintiff below, Distributors filed a motion for dismissal with Travis Reed ["Reed"], filed a products liability prejudice or, in the alternative, for the entry of an 1203action in three counts, strict *1203 liability, appropriate spoliation remedy. In support of their negligence and negligent failure to warn, against motion, Distributors filed an affidavit by their each of two defendants below, Alpha Professional expert, Jennifer Yaek, a licensed engineer, who Tools and Beno J Gundlach Company attested that Distributors were prejudiced as a [collectively "Distributors"], the distributors of a result of the destruction of evidence. Mainly, this marble edge polishing wheel. The suit alleged that affidavit catalogued various potential issues that Reed was operating a grinder with the polishing she could not investigate, such as fracture wheel attached when the polishing wheel broke initiation sites, abuse, misuse, and possible foreign into pieces. At least one piece struck Reed in his material that may have been on the wheel's left eye, causing permanent blindness. The suit surface. Also complained of was the inability to also alleged that the polishing wheel was inspect the marble being polished at the time of purchased less than a month before the incident the accident, the grinder and the safety glasses. On and that Reed was wearing safety glasses while December 11, 2006, Reed filed his response to operating the grinder and wheel. The complaint Distributors’ motion along with several affidavits asserted that the marble edge polishing wheel's by firm employees that attested to the fact that the design and manufacture were defective. evidence was properly secured prior to the move. # casetext Reed v. Alpha 975 So. 2d 1202 (Fla. Dist. Ct. App. 2008) At the December 13, 2006, hearing on product on which the suit was based, would be Distributors' dismissal motion, Distributors urged allowed to establish a prima facie case of dismissal of the suit, claiming prejudice at not negligence through use of the so-called "Greco having the evidence for their expert to inspect. Inference, m1 even though the defendant Reed argued that prevailing law disfavored manufacturer had no opportunity to rebut the dismissal as excessively harsh when the loss of the inference as described in Cassisi v. Maytag Co., evidence was not intentional, the plaintiff was able 396 So.2d 1140 (Fla. Ist DCA 1981) because of to proceed without the lost evidence and where a the loss of the product. See Torres, 762 So.2d at lesser sanction would eliminate any disadvantage 1016. In Zorres, the majority concluded that use of to the defense. The trial court took the case under the inference would leave the defendant advisement, indicating an intention to conduct a completely unable to defend. In order to prevent tuling hearing after the new year. that unfair result, the Zorres court decided that the inference would not be available to the plaintiff. Subsequently, Reed filed a motion to continue Without it, the plaintiff was unable to proceed. tuling, requesting the opportunity to permit Hence, the dismissal.? discovery of the experts. Reed also filed an affidavit by his expert who attested that he had 1 Greco v. Bucciconi Eng'g Co., 283 FSupp. inspected the evidence prior to its loss, had taken 978 (W.D.Pa. 1967). extensive photographs and that his opinion that the The Torres majority's decision to affirm product was defective could be substantiated dismissal of the design defect claim is less entirely by the detailed close-up photographs that easy to understand or explain. Apparently, he had taken. Distributors opposed a continuance. the majority concluded that the only On February 19, 2007, the trial court entered its potential design flaw was one that would order of dismissal, concluding that Distributors manifest itself only after significant wear, were "completely unable to proceed with a therefore, the presence of the product defense" without the lost evidence, and dismissed would be indispensable. the case with prejudice. It does not appear that the This is not a Greco/Cassisi case. Unlike Torres, in 1204continuance motion was ruled upon. *1204 this case, extensive photographs of the item had Distributors contend that the controlling authority been made and the plaintiff has asserted that he in this case is this court's opinion in Torres v. can prove his claim based on the photographs and Matsushita Elec. Corp., 762 So.2d 1014 (Fla. 5th other specimens of the allegedly defective DCA 2000), and that the only difference between product. Unlike Torres, identification of the this case and orres is the product at issue. The product is not an issue. Unlike Zorres, in this case, trial court appears to have relied on Jorres. It is the parties can be placed on an equal footing by true that there are some similarities between this limiting the plaintiff to the physical evidence case and Jorres. Most notably, it is clear in both available to both parties, ic. the photographs. cases that the loss of the product was inadvertent. Although the defendant will not be able to inspect It is perhaps understandable, given the length and the product, it will benefit from the inherent structure of the Jorres decision, to misapprehend limitations on the plaintiffs proof and will be able its holding, but this case is fundamentally different to match the plaintiffs access to the available from Torres. The premise on which Zorres was evidence. based was that the plaintiffs defect claims could To some extent, the issue on which the trial judge not be proved by direct evidence since the product focused is a problem of syntax. In Jorres, without had been lost. The Yorres court had before it the question of whether the plaintiff, who had lost the the spoliated product, the defendant was left te casetext Reed v. Alpha 975 So. 2d 1202 (Fla. Dist. Ct. App. 2008) completely unable to defend. This case, on the Our conclusion that the trial court erred by other hand, is more like a situation where the dismissing this case is also influenced by the defendant is unable to defend completely. The timing of the dismissal and the state of the record. defendant enumerates a variety of testing and Here, again unlike Torres, little discovery has inspections that it cannot do because it does not taken place. Neither party's expert has been have the product. To the extent that Torres deposed and the filed affidavits are both sparse contemplates dismissal based on prejudice to the and conclusory. Where, as here, the decision to defendant, its reach is to the complete inability to dismiss is based on the defense expert's opinion of defend, not the inability to defend completely. prejudice, the plaintiff should have the opportunity Spoliation is not a strict liability concept — “lose to test those opinions in discovery. The court the evidence, lose the case" — no matter whether cannot correctly evaluate the Distributors’ claim of the plaintiff or the defendant was responsible for prejudice until this has been done. Depending on the loss. For a variety of reasons, the product is the state of the record once essential discovery has not always available after the incident causing been done and the record has been developed, the injury. Depending on the circumstances, a trial court may or may not correctly arrive at the products liability claim may nevertheless be same conclusion. proven. The goal in spoliation cases is to assure REVERSED and REMANDED. that the non-spoliator does not bear an unfair 1205burden. *1205 SAWAYA and COHEN, JJ., concur. @ casetext Supreme Court of Florida No. SC11-1542 IN RE: AMENDMENTS TO THE FLORIDA RULES OF CIVIL PROCEDURE—ELECTRONIC DISCOVERY. [July 5, 2012] PER CURIAM. The Florida Bar’s Civil Procedure Rules Committee (Committee) filed an out-of-cycle report proposing amendments to the Florida Rules of Civil Procedure to address discovery of electronically stored information (ESI). We have jurisdiction. See art. V, § 2(a), Fla. Const. BACKGROUND The Committee proposes amendments to seven civil procedure rules: 1.200 (Pretrial Procedure); 1.201 (Complex Litigation); 1.280 (General Provisions Governing Discovery); 1.340 (Interrogatories to Parties); 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes); 1.380 (Failure to Make Discovery; Sanctions); and 1.410 (Subpoena). The Committee’s proposals were unanimously approved by The Florida Bar Board of Governors. After the Committee submitted its report to the Court, the Court published the proposed amendments in The Florida Bar News for public comment. We received and considered comments from several organizations and members of the Bar. We have also considered the issues discussed during the oral argument in this case. As explained below, we adopt the amendments as proposed by the Committee. AMENDMENTS First, rule 1.200 (Pretrial Procedure) is amended to allow the trial court to consider various issues related to electronic discovery during a pretrial conference, including the possibility of obtaining admissions of fact, the voluntary exchange of documents and electronically stored information, and stipulations regarding the authenticity of documents and electronically stored information; the need for advance rulings on the admissibility of some documents or ESI; and finally, specifically as to electronically stored information, the possibility of an agreement between the parties regarding the extent to which such information should be preserved and the form in which it should be produced. Similarly, rule 1.201 (Complex Litigation) is also amended to require the parties in a complex civil case to address the possibility of an agreement between them addressing the extent to which electronic information should be preserved and the form in which it should be produced. -2- Next, rule 1.280 (General Provisions Governing Discovery) is amended to expressly authorize discovery of electronically stored information. Rule 1.280 is also amended to add new subdivision (d), which provides some specific limitations on discovery of ESI; the subsequent subdivisions are relettered accordingly. Under new subdivision (d)(1), a person may object to a discovery request seeking electronically stored information. On a motion to compel discovery, or a motion for a protective order, the person from whom the discovery is sought must show that the information sought or the format requested is not reasonably accessible because of undue burden or cost. If this showing is made, the court may nonetheless order the discovery if the requesting party shows good cause. However, the court may specify certain conditions of discovery, including ordering that some or all of the expenses incurred while complying with the discovery request be paid by the party seeking the discovery. Under subdivision (d)(2) the court, in addressing a motion pertaining to discovery of ESI, must limit the frequency or extent of discovery if it determines that the information sought is: (i) unreasonably cumulative or duplicative, or can be obtained from another source or in another manner that is more convenient, less burdensome, or less expensive; or (ii) the burden or expense of the discovery outweighs its likely benefit. Rule 1.340 (Interrogatories to Parties) and rule 1.350 (Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes) -3- are both amended to allow for the production of electronically stored information, either as an answer to an interrogatory or in response to a specific request. Both tules provide for a party to produce the ESI in the form in which it is ordinarily maintained or in a reasonably usable form. Rule 1.380 (Failure to Make Discovery; Sanctions) is amended to provide that, absent exceptional circumstances, a court may not impose sanctions on a party for failing to provide electronically stored information that was lost as a result of the routine, good-faith operation of an electronic information system. Finally, rule 1.410 (Subpoena) is amended to authorize a subpoena requesting electronically stored information. A person receiving a subpoena may object to the discovery of the ESI. The person from whom discovery is sought must show that the information or the form requested is not reasonably accessible because of undue costs or burden. If that showing is made, the court may nonetheless order the discovery if the requesting party shows good cause and consistent with the limitations provided in rule 1.280(d)(2) discussed above. The court may also specify conditions of the discovery, including ordering that some or all of the expenses be paid by the party seeking the discovery. CONCLUSION Accordingly, we amend the Florida Rules of Civil Procedure as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions -4- are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. These amendments shall become effective September 1, 2012, at 12:02 a.m. It is so ordered. POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA, and PERRY, JJ., concur. THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS. Original Proceedings — The Florida Rules of Civil Procedure Committee Kevin D. Johnson, Chair, Civil Procedure Rules Committee, Tampa, Florida and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida, for Petitioner Henry P. Trawick, Jr. of Henry P. Trawick, P.A., Sarasota, Florida; Ralph Artigliere, Blue Ridge, Georgia, William F. Hamilton of Quarles & Brady, LLP, Tampa, Florida and Ralph C. Losey of Jackson, Lewis, LLP, Orlando, Florida; Donald R. Fountain, Jr. of Clark, Fountain, La Vista, Prather, Keen & Littky- Rubin, LLP, West Palm Beach, Florida; L. Johnson Sarber, III, Marks of Marks, Gray, Conroy & Gibbs, Jacksonville, Florida and L. Gino Marchetti, President, Lawyers for Civil Justice, Washington, D.C., Responding with comments -5- APPENDIX RULE 1.200. PRETRIAL PROCEDURE (a) Case Management Conference. At any time after responsive pleadings or motions are due, the court may order, or a party by serving a notice may convene, a case management conference. The matter to be considered shall be specified in the order or notice setting the conference. At such a conference the court may: M-@ [No Change] 5 consider the possibili of obtaining admissions of fact and voluntary exchange of documents and electronically stored information, and stipulations regarding authenticity of documents and electronically stored information; (6) consider the need for advance rulings from the court on the admissibility of documents and electronically stored information; (7) discuss as to electronically stored information, the possibility of agreements from the parties regarding the extent to which such evidence should be preserved, the form in which such evidence should be produced, and whethe discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources; (58) schedule disclosure of expert witnesses and the discovery of facts known and opinions held by such experts; (69) schedule or hear motions in limine; (410) pursue the possibilities of settlement; ($11) require filing of preliminary stipulations if issues can be narrowed; (912) consider referring issues to a magistrate for findings of fact; and (4013) schedule other conferences or determine other matters that may aid in the disposition of the action. -6- (b) - (d) [No Change] Committee Notes 1971 - 1992 Amendments. [No Change] 2012 Amendment. Subdivisions (a)(5) to (a)(7) are added to address issues involving electronically stored information. Court Commentary [No Change] RULE 1.201. COMPLEX LITIGATION (a) [No Change] (b) Initial Case Management Report and Conference. The court shall hold an initial case management conference within 60 days from the date of the order declaring the action complex. (ly At least 20 days prior to the date of the initial case management conference, attorneys for the parties as well as any parties appearing pro se shall confer and prepare a joint statement, which shall be filed with the clerk of the court no later than 14 days before the conference, outlining a discovery plan and stating: ()-@O [No Change] (J)___the possibility of obtaining agreements among the partie regarding the extent to which such electronically stored information should be preserved, the form in which such information should be produced, and whethe: discovery of such information should be conducted in phases or limited to particular individuals, time periods, or sources: (JK) suggestions on the advisability and timing of referring matters to a magistrate, master, other neutral, or mediation; -7- (KL) a preliminary estimate of the time required for trial; (EM) requested date or dates for conferences before trial, a final pretrial conference, and trial; QAN) a description of pertinent documents and a list of fact witnesses the parties believe to be relevant; (NO) number of experts and fields of expertise; and (QP) any other information that might be helpful to the court in setting further conferences and the trial date. (2)-@) [No Change] (©) The Case Management Order. The case management order shall address each matter set forth under rule 1.200(a) and set the action for a pretrial conference and trial. The case management order also shall specify the following: (1) Dates by which all parties shall name their expert witnesses and provide the expert information required by rule 1.280(b)(45). Ifa party has named an expert witness in a field in which any other parties have not identified experts, the other parties may name experts in that field within 30 days thereafter. No additional experts may be named unless good cause is shown. 2)-©) [No Change] (d) [No Change] Committee Notes 2012 Amendment. Subdivision (b)(1)(J) is added to address issues involving electronically stored information. RULE 1.280. GENERAL PROVISIONS GOVERNING DISCOVERY (a) [No Change] -8- (b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: ()-@) [No Change] (3) Electronically Stored Information. A party may obtain discovery of electronically stored information in accordance with these rules. 4) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(45) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative, including that party’s attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Without the required showing a party may obtain a copy of a statement concerning the action or its subject matter previously made by that party. Upon request without the required showing a person not a party may obtain a copy of a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for an order to obtain a copy. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred as a result of making the motion. For purposes of this paragraph, a statem