FLORIDA STATE CASES

  • Asbestos and Silica Compensation Fairness Act – Dismissal with prejudice appropriate where Plaintiff fails to meet the requirements of Sections 774.204(3) and 774.205(2) prior to the expiration of the two year statute of limitations.  It is permissible for a trial court to dismiss a complaint at the motion to dismiss stage where it can be conclusively determined from the face of the complaint that the statute of limitations has expired.  The issue in Moody is whether it is proper to dismiss a complaint with prejudice when the requisite pre-suit written reports and supporting testing results required to be filed under the Asbestos and Silica Compensation Fairness Act (“Act”) are not filed prior to the expiration of the statute of limitations.    The Court looked to cases interpreting Chapter 766, which sets forth pre-suit requirements in the medical malpractice context, and held that a plaintiff who fails to meet the pre-suit requirements of the Act prior to the two year statutes of limitations applicable to wrongful death actions is subject to dismissal with prejudice.  Moody v. Advance Stores Company, Inc, No. 16-2012-CA-13784, 2014 WL 4210511 (Fla. 4th Cir. Ct. Aug. 22, 2014).
  • Public Records Request – Public entity’s unjustifiable delay in making non-exempt public records available in response to a proper request constitutes a violation of Chapter 119, Florida’s Public Records Act:  Disclosure of public records in mandatory in Florida.  Custodians of public records must permit records “to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions.” A custodian may delay only (1) to determine whether the record exists; (2) if the custodian believes the record is exempt; or (3) the requesting party fails to remit the appropriate fees. An unjustifiable delay to the point of forcing a requester to file an enforcement action is by itself tantamount to an unlawful refusal to produce the documents.  The Promenade D’Iberville, LLC v. Sundy, 39 Fla. L. Weekly D1829a, Case No. 1D13-5583 (Fla. 1st DCA August 28, 2014).
  • Discovery of Expert Witness’ Financial Relationship – Financial relationship between treating doctor who is also serving as expert witness and the plaintiff’s law firm is discoverable on the basis of bias: Defendant served a subpoena duces tecum on a non-party expert who also served as Plaintiff’s treating physician.  The expert objected to the request for information regarding patients previously represented by Plaintiff’s law firm and referrals from the plaintiff’s attorneys.  The Court held that a physician’s continued financial interest in treating other patients referred by a particular law firm after doctor’s involvement as an expert witness could conceivably be a source of bias not immediately apparent to a jury.  Rule 1.280(b)(5) neither addresses nor circumscribes discovery of this financial relationship.  Because the subpoena duces tecum was limited to a reasonable time frame and not overly intrusive, discovery was permissible. Brown v. Mittleman, 30 Fla. L. Weekly D1806a, Case No. 4D11-1748 (Fla. 4th DCA August 27, 2014)