Abbey Adams Logo

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

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

October 29, 2020 by Jennifer Kennedy

Evidence — No error in trial court’s exclusion of insurance adjuster’s report — Report was protected work product, and plaintiff failed to establish applicable exception to prohibition against use of such materials at trial — No error in determination that work product privilege was not waived — No abuse of discretion in denying plaintiff’s request to be recalled to witness stand as a rebuttal witness — Damages — Setoff — Collateral source — Error to include in amount of collateral source set-off a bill paid by plaintiff

45 Fla. L. Weekly D2390b

CLIFFORD JASON GREGORY, Appellant, v. KEY WEST WELDING AND FABRICATIONS, INC., et al., Appellees. 3rd District. Case No. 3D18-2419. L.T. Case No. 06-390-K. October 21, 2020. An Appeal from the Circuit Court for Monroe County, Timothy J. Koenig, Judge. Counsel: Hugh Morgan; W. Sam Holland; Wasson & Associates, Chartered, and Roy D. Wasson, for appellant. Butler Weihmuller Katz Craig LLP, and Carol M. Rooney (Tampa), for appellees.

(Before EMAS, C.J., and HENDON and GORDO, JJ.)

(EMAS, C.J.) Clifford Jason Gregory appeals final judgment entered by the trial court following a trial, asserting the court made several errors which require a new trial. Upon review, and with one exception described below, we affirm the final judgment.

First, we find no error in the trial court’s exclusion of the insurance adjuster’s report, as it was protected work product and Gregory failed to establish an applicable exception to the prohibition against the use of such materials at trial. See Fla. R. Civ. P. 1.280(b)(4); Int’l House of Pancakes (IHOP) v. Robinson, 124 So. 3d 1004 (Fla. 4th DCA 2013). In addition, we agree with the trial court’s determination that there was no waiver of the work product privilege in this case. See Abamar Hous. & Dev., Inc. v. Lisa Daly Lady Décor, Inc., 698 So. 2d 276, 278 (Fla. 3d DCA 1997).

We also find no abuse of discretion in the trial court’s decision to deny Gregory’s request to be recalled to the witness stand as a rebuttal witness. See Gutierrez v. Vargas, 239 So. 3d 615, 625 (Fla. 2018) (holding: “Courts should exercise their discretion to avoid the needless waste of time through unnecessary presentation of cumulative evidence.”)

Finally, we affirm the trial court’s order granting a collateral source set-off, with the exception of the $555.80 paid by Gregory to Sweet Bay Pharmacy, which was erroneously excluded by the trial court. The undisputed post-judgment evidence presented to the trial court established Gregory’s payment of the Sweet Bay Pharmacy bill in this amount, and thus, the trial court should have included that figure in its calculation of the amounts to be awarded in the final judgment. On remand, the final judgment should be amended to include that amount, reduced by the corresponding comparative negligence as determined by the jury’s verdict.

We affirm without discussion of the other points raised by Gregory in this appeal.

Affirmed in part, reversed in part and remanded for further proceedings.

* * *

Filed Under: Uncategorized

Primary Sidebar

Recent Posts

  • Winn-Dixie, website, customers, prescription, place of public accommodation, coupons, refills, privileges, disabled, advantages, accommodations, visually-impaired, auxiliary, public accommodation, inaccessible, barrier, offerings, sighted, majority opinion, intangible, enjoyment, locator, rewards, card, district court, facilities, shopping, software, communicate, in-store – The difficulties caused by the customer’s inability to access much of the store’s website constituted a concrete and particularized injury that was not conjectural or hypothetical, and would continue if the website remained inaccessible; [2]-The statutory language in Title III of the ADA defining “public accommodation” was unambiguous and clear, and public accommodations were limited to actual, physical places, and websites were not a place of public accommodation under the statute; [3]-The store’s website did not constitute an intangible barrier to the customer’s ability to access and enjoy fully the physical grocery store; [4]-Absent congressional action that broadened the definition of “places of public accommodation” to include websites, the appellate court could not extend ADA liability to the facts presented.
  • Civil rights — Employment discrimination — Pharmacist employed by Department of Veterans Affairs brought action against Secretary, alleging that her managers at VA medical center discriminated against her based on her gender and age, retaliated against her because she engaged in protected activity, and subjected her to hostile work environment in violation of Title VII and Age Discrimination in Employment Act — Retaliation — Title VII’s federal-sector retaliation provision requires personnel actions to be made free from any discrimination — Supreme Court’s decision in pharmacist’s case, which held that federal-sector provision of ADEA did not require plaintiff to prove that age was a but-for cause of a challenged personnel action, undermined to the point of abrogation Eleventh Circuit’s prior panel precedent holding that Title VII’s federal-sector retaliation provision requires but-for causation — Standard that Supreme Court articulated for claims under ADEA’s federal-sector provision controls cases arising under Title VII’s nearly identical federal-sector provision — Retaliatory hostile work environment — An actionable federal-sector Title VII retaliatory-hostile-work-environment claim must describe conduct that rises to the level of personnel actions and must be evaluated under “might have dissuaded a reasonable worker” standard rather than the more stringent “severe or pervasive” standard
  • Insurance — Personal injury protection — Reasonable, related, and necessary medical treatment — Civil procedure — Summary judgment — Opposing affidavit — Trial court abused its discretion in granting motion to strike affidavit of independent medical examiner based on plaintiff’s claim that affidavit “baldly repudiated” affiant’s deposition testimony regarding relationship between injuries and accident and medical necessity of chiropractic treatment — Because affiant’s testimony raised genuine issue of material fact, as it clearly conflicted with testimony of treating chiropractor, order granting summary judgment in favor of assignee/medical provider reversed
  • Wrongful death — Automobile accident — Jurors — Peremptory challenge — Race neutral explanation — Genuineness — New trial — Evidence — Trial court did not abuse its discretion in granting a new trial based on its improper denial of plaintiff’s peremptory challenge of juror — Trial court failed to apply proper legal standard in denying plaintiff’s peremptory strike of juror where it failed to recognize the presumption that plaintiff was exercising her peremptory challenge in a nondiscriminatory manner and hold defendants to their burden of proving purposeful discrimination — Fact that juror was sole African American juror left on the panel is, standing alone, insufficient to override a genuine race-neutral challenge — Trial court erred in granting a new trial based on its determination that verdict finding one of the defendants 100% liable for the fatal accident was against the manifest weight of the evidence — Order shows that trial court improperly re-weighed the evidence and acted as a seventh juror in doing so — Trial court erred in permitting jury to hear evidence related to defendant’s driving history where not only was the evidence unduly prejudicial, but the citations bore no similarity to the circumstances at issue and had no relevance to defendant’s alleged negligence at the time of the accident — Trial court erred in granting defendant’s motion notwithstanding verdict which asserted that defendant should not be liable for the total amount of damages to co-defendant’s tractor-trailer — A new-trial order and order for judgment notwithstanding verdict are mutually inconsistent and may not be granted simultaneously unless granted on the express condition that the order granting the judgment notwithstanding verdict only becomes effective if the order granting new trial is reversed on appeal, which did not happen in this case
  • Workers’ compensation — Prosthetic devices — Limitation of actions — Claimant who had screws and rods inserted in her spine as a result of an injury occurring in 1990 — Judge of compensation claims erred in rejecting employer/carrier’s statute of limitations defense to claim for pain management and a replacement mechanical bed — While applicable 1989 version of workers’ compensation law contained an exemption from its statute of limitations to the right for remedial attention relating to the insertion or attachment of a prosthetic device, there is no evidence that either the prosthesis, or the surgery required to insert it, is causing the need for the requested benefits as opposed to the underlying condition that necessitated the prosthesis in the first place — Fact that claimant may have a prosthetic device is not, standing alone, sufficient to prevent statute of limitations from accruing

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982