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Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

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Torts — Premises liability — Slip and fall — Damages — Evidence — Treating physician — New opinion — Trial court erred by excluding any testimony from plaintiff’s treating physician regarding plaintiff’s need for future medical treatment and the anticipated cost of treatment based on determination that such testimony would be in violation of Binger v. King Pest Control because physician’s medical reports did not include recommendations for future treatment and testimony was based on other physician’s medical records — A treating physician may offer opinions based on treatment rendered and on review of relevant records — Physician did not change his opinion, but rather formed it based on his examinations of plaintiff as well as his review of plaintiff prior to treatment — Moreover, physician’s observations and recommendations were disclosed to defendant pre-trial, thereby limiting possibility of surprise and substantial prejudice to defendant — Any surprise was self-inflicted where physician was timely disclosed as a hybrid witness on causation and damages, yet defendant waited until five days before trial to depose him — Exclusion of physician’s testimony of observations and diagnoses reached subsequent to his physical examination of plaintiff materially prejudiced plaintiff’s ability to prove a central element of damages — Trial court further erred by finding that physician’s testimony regarding future medical expenses was inadmissible because physician could not state with certainty that plaintiff would undergo recommended treatments — Future medical expenses are recoverable when they are “reasonably certain” to be incurred — Directed verdict — Trial court erred in granting directed verdicts against plaintiff on her claims for damages from two prior surgeries and future pain and suffering where plaintiff’s expert linked plaintiff’s fall to the surgeries with reasonable degree of medical certainty and his opinion was corroborated by other evidence — Remand for new trial

50 Fla. L. Weekly D1496a YANEIRA E. APONTE, Appellant, v. WAL-MART STORES EAST, LP, Appellee. 4th District. Case No. 4D2023-2417. July 9, 2025. Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Janet Carney Croom, Judge; L.T. Case No. 312020CA000638. Counsel: Chad A. Barr of Chad Barr Law, Altamonte Springs, for […]

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Torts — Premises liability — Restaurants — Slip and fall — Transitory foreign substance — Knowledge of dangerous condition — Directed verdict — Trial court erred by granting defendant’s motion for directed verdict following jury verdict assigning no negligence to plaintiff and awarding her damages for past and future medical expenses and pain and suffering — Plaintiff presented sufficient evidence of restaurant’s constructive notice of dangerous condition where testimony regarding color and condition of water and the amount of foot traffic in the area provided evidence that water had been present on floor long enough for restaurant to discover it, and expert testimony and defendant’s admissions established that condensate in the area of the fall was a reoccurring, foreseeable condition — New trial — Argument — No abuse of discretion in alternatively granting defendant’s motion for new trial based plaintiff’s counsel’s act of reading an excerpt from the restaurant manager’s deposition that had not been introduced into evidence because the parties had agreed to exclude it, telling the jury that a doctor had testified as to the cost of knee surgery despite plaintiff’s withdrawal of her claim for future medical expenses and lack of any trial evidence as to the cost, and suggesting that the restaurant might have withheld or destroyed evidence

50 Fla. L. Weekly D1494a BARBARA LOREN, Appellant, v. ONCE UPON A TIME GROUP, CORP., Appellee. 4th District. Case No. 4D2023-3154. July 9, 2025. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Gregory M. Keyser, Judge; L.T. Case No. 502019CA011719. Counsel: Sam Mandelbaum and Annabel C. Majewski of Wasson & […]

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Civil rights — Florida Civil Rights Act — Exhaustion of administrative remedies — Statutory requirement that a claimant file a complaint with the Florida Commission on Human Relations containing “a short and plain statement of the facts describing the violation and the relief sought” before bringing a civil action under the FCRA is satisfied when a claimant specifically references only federal law in a charge of discrimination dual filed with the federal Equal Employment Opportunity Commission and the Florida Commission on Human Relations — A claimant need not allege he is seeking relief under FCRA to exhaust administrative remedies

50 Fla. L. Weekly S167a STEAK N SHAKE, INC., Petitioner, v. WILFRED RAMOS, JR., Respondent. Supreme Court of Florida. Case No. SC2024-0099. July 10, 2025. Application for Review of the Decision of the District Court of Appeal Certified Direct Conflict of Decisions. Second District – Case No. 2D2022-3465 (Hillsborough County). Counsel: J. Robert McCormack and […]

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Insurance — Uninsured motorist — Coverage — Damages — Judgment — Trial court erred by entering judgment for the net jury verdict where plaintiff’s bad faith claim was still pending — Judgment must be within policy limits and may only reference the net verdict as the measure of damages if the plaintiff later prevails on the bad faith claim

50 Fla. L. Weekly D1454a STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. CATHERINE HUDNALL, Appellee. 5th District. Case No. 5D2024-0922. L.T. Case No. 2017-CA-003146. July 3, 2025. On appeal from the Circuit Court for Duval County. G.L. Feltel, Jr., Judge. Counsel: Warren B. Kwavnick, of Cooney Trybus Kwavnick Peets, Fort Lauderdale, for Appellant. Brian […]

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Jurisdiction — Non-residents — Venue — Tortious act in state — Minimum contacts — Trial court’s denial of non-resident defendant’s motion to dismiss for lack of personal jurisdiction and improper venue affirmed

50 Fla. L. Weekly D1448a JOHN-LAWRENCE AFRIYIE, Appellant, v. LOUIS FRIEND, Appellee. 3rd District. Case No. 3D25-0412. L.T. Case No. 25-218-CA-01. July 2, 2025. An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge. Counsel: John-Lawrence Afriyie, in proper person. Maguire & Friend, P.A., and Michael R. Friend, […]

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