TORTS: WRONGFUL DEATH: PRODUCT LIABILITY: TOBACCO: ENGLE PROGENY CASE; APPEALS: PRESERVATION: WAIVER: INVITED ERROR: PLAINTIFF WAIVED ARGUMENT THAT FINDING OF ENGLE CLASS MEMBERSHIP PRECLUDED FINDING THAT DEATH WAS NOT CAUSALLY RELATED TO DEFENDANT’S WRONGFUL ACTS BECAUSE PLAINTIFF’S COUNSEL ADVOCATED OR AGREED TO INSTRUCTIONS AND VERDICT FORM THAT SUBMITTED ISSUE OF CAUSATION TO THE JURY

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Baker v. R.J. Reynolds Tobacco Company, ___ So. 3d ___, 40 Fla. L. Weekly D476 (Fla. 4th DCA February 18, 2015)

The jury found that the decedent was a member of the Engle class but that the defendant’s wrongful acts were not the cause of his death. The plaintiff moved for a new trial based upon the premise that … Click To Read Full Case Law Review...

TORTS: MEDICAL MALPRACTICE: JURY INSTRUCTIONS: RETAINED FOREIGN BODY INSTRUCTION WAS UNNECESSARY AND WAS NOT SUPPORTED BY THE FACTS BECAUSE THE PLAINTIFF WAS CONSCIOUS AND HIS WIFE WAS IN THE ROOM WHEN A NURSE FAILED TO REMOVE THE ENTIRE DRAINAGE TUBE FROM HIS SURGICAL INCISSION; APPEALS: PRESERVATION: WAIVER: COURT DECLINES TO CONSIDER WHETHER INSTRUCTION WOULD HAVE BEEN APPROPRIATE WITH RESPECT TO ONE OF THE PLAINTIFF’S TWO CLAIMS BECAUSE THE PARTIES FAILED TO COMPLY WITH THE TRIAL COURT’S REQUEST TO SUBMIT PROPOSED INSTRUCTIONS DIFFERENTIATING BETWEEN THE CLAIMS

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Dockswell v. Bethesda Memorial Hospital, Inc., ___ So. 3d ___, 40 Fla. L. Weekly D480 (Fla. 4th DCA February 18, 2015)

The day after surgery, a nurse failed to remove the entire drainage tube from the plaintiff’s incision. The error was discovered four months later and was corrected by a second surgery. The plaintiff contended that the nurse was … Click To Read Full Case Law Review...

APPEALS: PRESERVATION: APPELLANT FAILED TO PRESERVE ISSUE FOR APPEAL BECAUSE IT OBJECTED ON DIFFERENT BASIS IN TRIAL COURT: JURISDICTION: APPELLATE COURT MAY REVIEW ANY MATTER THAT OCCURRED BEFORE NOTICE OF APPEAL WAS FILED: NOTICE OF APPEAL OF FINAL JUDGMENT DOES NOT CREATE JURISDICTION TO REVIEW ORDERS ENTERED AFTER FINAL JUDGMENT

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Kelly v. Snietka, ___ So. 3d ___, 40 Fla. L. Weekly D381 (Fla. 4th DCA February 11, 2015)

The appellate court refused to consider this appeal on the merits because the appellant objected on different grounds in the trial court. With regard to its jurisdiction, the court explained, under Fla. R. App. P. 9.110(h), an appellate court “may review … Click To Read Full Case Law Review...

CRIMINAL LAW: EVIDENCE: APPEALS: PRESERVATION: DEFENDANT FAILED TO PRESERVE HIS CHALLENGE TO THE EXCLUSION OF EVIDENCE BECAUSE HE DID NOT PROFFER THE DESIRED TESTIMONY, AND IT WAS NOT APPARENT FROM THE RECORD

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Pearlman v. State, ___ So. 3d ___, 40 Fla. L. Weekly D381 (Fla. 4th DCA February 11, 2015)

The defendant was charged with lewd or lascivious battery on a child between the ages of twelve and sixteen years of age. The trial court precluded the defendant from cross examining the victim about “anatomical terminology critical to the elements of … Click To Read Full Case Law Review...

ATTORNEY’S FEES: EVIDENCE: AFFIDAVITS: JUDICIAL NOTICE: APPEALS: PRESERVATION: OBJECTIONS ON APPEAL MUST BE THE SAME AS THOSE MADE IN TRIAL COURT: OBJECTIONS TO SPECIFIC ENTREES IN TIMESHEETS AND TO QUALIFICATIONS OF THE OPPOSING PARTY’S EXPERT WERE INSUFFICIENT TO PRESERVE AN OBJECTION TO JUDICIAL NOTICE OF THE AFFIDAVITS OF OPPOSING COUNSEL AND THE OPPOSING PARTY’S EXPERT

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Waheed v. Brummer, ___ So. 3d ___, 40 Fla. L. Weekly D303 (Fla. 5th DCA January 30, 2015)

The appellant appealed from an award of attorney’s fees because the trial court took judicial notice of the affidavits of the appellees’ attorney and expert witness, but the appellate court refused to consider this issue because it was not raised in … Click To Read Full Case Law Review...