Issue 12: October 2024

ICYMI - All the news from the past month!

I. Need to Know: Recent Publications

Tiffany Hampton Published in Stetson Journal of Advocacy and the Law

Tiffany Hampton’s article “Non-Binding Arbitration: Tools for Your ADR Toolbox,” was recently published in the Stetson Journal of Advocacy and the Law. Tiffany is a partner in the Naples office, where her practice focuses mostly on medical malpractice, health care law, and long term care facility matters. She is also a proud alumna of Stetson University College of Law. Read her article and the complete Journal edition here: https://lnkd.in/eRVfPWDD

John Floyd, Jr., Published in the Tennessee Bar Journal

Nashville partner John Floyd has a new article in the September/October Tennessee Bar Journal, "Can Denials to Requests for Admissions Be Used Against You at Trial?"Check out his article and the complete digital issue here: https://lnkd.in/eiG-GSH5

II. Protecting Your Interests: Verdicts, Dismissals, and Judgments

Seven Appellate Wins in Seven Weeks

Orlando partner Michael D'Lugo has obtained seven appellate wins seven weeks from August to October. Read about Michael's successes and the rest of our appellate law practice here: https://lnkd.in/eg7jM_Hm

Defense Verdict: Miami-Dade County, Florida (Medical Malpractice)

Miami partner T. Michael Kennedy and associate Roxette Gonzalez recently obtained a defense verdict in a medical malpractice trial in Miami-Dade County.

Plaintiff in this case presented to our client for surgery to repair the first metatarsal phalangeal joint of his left great toe. During the surgery, our client podiatric surgeon discovered a condition that had not been visible on the pre-op films, and made the decision intra-operatively to remove Plaintiff’s tibial sesamoid bone as a remedy. Following the surgery, Plaintiff alleged that this decision caused him to experience excessive pain and toe drift, and required him to undergo a revision surgery to fuse the joint. He further claimed that the pain from the surgery and the subsequent revisions forced him to retire from his job as a professor five years earlier than he had originally planned.

The defense presented evidence and expert testimony that all supported the theory that our client had not deviated from the standard of care, and that the intra-operative removal of the sesamoid bone was necessary; and also that the pain and toe drift the Plaintiff experienced was a natural result of the surgery itself and the underlying arthritis that necessitated the surgery in the first place.

After a five day trial, Plaintiff asked the jury for $2 million in closing arguments. The jury found no negligence on the part of our client, and returned a complete defense verdict. Congratulations Michael and Roxette on this excellent result.

Defense Verdict: Orange County, Florida (Trucking Negligence)

Orlando partners Kurt Spengler and Taira H. Towne, J.D., M.B.A., and associates Devin Harvey and Oscar Draughn, recently obtained a defense verdict in a trucking negligence case in Orange County, Florida.

This case arose from a sideswipe collision that occurred between Plaintiff and our client driver on Thanksgiving Eve in 2017. Plaintiff was 20 years old at the time of the accident, and claimed significant injuries to his neck and back, as well as PTSD, as a result of the accident. Plaintiff presented past medicals in the amount of $130,000, future medicals in the amount of $350,000, and a future lost wages claim of $750,000. After a seven day trial, they asked the jury to award between $2 - $8 million in pain and suffering.

The jury deliberated for less than three hours before concluding that Plaintiff had not met their burden in proving negligence, and returned a complete defense verdict. Congratulations to the entire team on this excellent result.

Defense Verdict: Palm Beach County, Florida (Medical Malpractice)

West Palm Beach partners Adam Rhys and Amanda Ritucci, and associate Darya Momeni, recently obtained a defense verdict in a medical malpractice case in Palm Beach County, Florida.

Plaintiff in this case alleged that our client, a CRNA, negligently discharged the Plaintiff following a cosmetic procedure performed at the plastic surgeon’s office. These allegations included that our client did not appreciate the Plaintiff’s compromised condition following the procedure while in the recovery room, failed to administer critical reversal medications and/or call 911, and failed to provide crucial information to EMS once they were called. As a result, Plaintiff claimed brain damage resulting in cognitive impairment, including loss of memory and function, headaches, and depression and anxiety.

Defense of this case centered around the position that our client appropriately assessed the Plaintiff, who met the discharge criteria at the time but experienced a marked change in condition afterwards once at home.

After a seven day trial, Plaintiff’s counsel asked the jury for $1 million. The jury deliberated for three hours before returning a complete defense verdict in our client’s favor. Congratulations to the entire team that worked on this file. The client is very pleased with this result.

Case Dismissed: Orange County, Florida (Professional Liability)

Orlando partner Kyle Fontaine recently obtained a dismissal with prejudice in a professional liability case in Orange County, Florida.

Plaintiff in this case alleged that the dispensing pharmacy and pharmacist failed to warn him of the risks of adverse side effects from an injectable male enhancement formula compounded by the pharmacy, resulting in him developing an allegedly debilitating case of Peyronie’s disease. He claimed damages in the seven figures.

The Court agreed, after nearly 18 months of motion practice, that the Plaintiff was not owed a duty to warn by the pharmacy or the pharmacist, and dismissed the case with prejudice. Congratulations Kyle, on this great outcome.

One Week, Two Summary Judgments: Lee County, Florida & Collier County, Florida

Congratulations to Naples partner Heidi Panepinto, Esquire , who obtained back to back summary judgments during the same week in late September.

Case 1: Lee County, FL; General Negligence

We represented a mental health care facility in this hotly contested general negligence action arising out of allegations of neglect of a vulnerable adult in violation of Florida’s Adult Protective Services Act.

The individual was Baker Acted by law enforcement and transported to our client facility with only the clothes on her back and her driver’s license. Upon being admitted, she was evaluated by a psychiatrist who determined she was a competent adult, capable of functioning independently in the community. She was started on medications and quickly stabilized. She declined to sign any Releases of Information; therefore the facility was legally prohibited from disclosing her PHI to third parties. Upon her discharge, she tried to call family to pick her up, but they didn’t answer. She refused to let our client try to contact them and requested a bus pass instead. She was given a bus pass, route, and map. When she did not return home timely, her mother contacted our client for an update and was advised that her daughter had been discharged two days earlier. After a two-day investigation, the patient’s recently deceased body was discovered behind a bush close to the bus stop near her parents’ house. The autopsy concluded she died from natural causes secondary to dehydration.

Decedent’s family sued our client facility for neglect of a vulnerable adult in violation of Section 415.1111, F.S. We filed a motion for summary judgment on two issues:  1) Our client owed no duty to Decedent after she was lawfully and legally discharged from the facility, and 2) Our client had no legal authority to disclose Decedent’s PHI to third parties without her verbal and/or written consent to do so. The hearing on our Motion for Summary Judgment went forward in early August. The Judge reserved ruling, and granted summary judgment in our favor of our client on September 18.

Case 2: Collier County, FL; Premises Liability

This was a premises liability matter arising from an alleged slip and fall that occurred in the parking lot of a popular Naples resort. Plaintiff alleged that she slipped and fell on a dead palm frond after stepping out of her vehicle, and that the fall caused her to have a seizure, as well as neck and back injuries. Plaintiff claimed Defendant was negligent for failing to warn her about the dangerous condition and for failing to maintain the premises in a reasonably safe condition. During her deposition, Plaintiff testified that she didn’t see the palm frond despite it being broad daylight and sunny. She also testified that she didn’t know how long the palm frond had been on the ground, and had no evidence that the hotel knew or should have known it was there.

Hotel staff testified that they had no knowledge that the palm frond was there prior to the incident, they had no idea how long it was there, and that the parking lot was inspected frequently by several employees throughout the day, who were all trained to pick up and remove debris such as this. Summary judgment was sought on the grounds that Defendant had availed itself of both the duty to warn and duty to reasonably maintain, because the condition was open and obvious and not inherently dangerous, and Plaintiff’s own inattentiveness is what caused her to slip and fall. The Court agreed, and summary judgment was granted in our client’s favor.

 Congratulations Heidi on this excellent work on behalf of our clients.

Summary Judgment Affirmed: Palm Beach County, Florida (Premises Liability)

West Palm Beach partner Nicholas Seamster and associate Anthony Crum recently had a summary judgment ruling affirmed by the Florida Fourth District Court of Appeal.

The underlying case involved a slip and fall at a Publix Super Markets location in Palm Beach County in 2019. Plaintiff alleged that she slipped in a large puddle of water, and further alleged that the puddle had been left by another customer’s child 17 minutes prior to her fall. Video footage of the incident showed no evidence of any definitive source of spilled water, and also showed a store employee in the vicinity of the area as well as numerous customers walking through the area of the alleged puddle without incident prior to Plaintiff’s fall. Further, the Plaintiff could not rule out that the source of the water was due to a customer with a tipped over water bottle in their cart approximately one minute prior to the Plaintiff’s fall.

Plaintiff claimed multiple injuries to her knee, neck, back, and groin as a result of the incident. She underwent multiple rounds of injections, two extensive lumbar surgeries, and a hernia surgery following her fall, with claimed medical bills in excess of $1.2 million.

We moved for summary judgment based on Publix’s lack of actual or constructive notice of the alleged dangerous condition. The trial court agreed, and summary judgment was granted in May 2023. Plaintiff timely appealed, and the matter came before the Florida Fourth District Court of Appeal for oral argument in early October 2024. After hearing arguments of counsel, the Court issued a per curiam affirmance on October 11. Congratulations Nick and Anthony on this excellent outcome.

III. We Are Wicker: Announcements, Recognition, and Honors

Congratulations to the Incoming First Year Associates Who Passed the Bar Exam

We are pleased to congratulate the 35 individuals who passed the bar exam in Florida, Tennessee, and Georgia, and joined the firm as brand new lawyers this fall. This is our largest class of first year associates in the history of the firm. We are thrilled to welcome them to the Wicker Smith family, and excited to see all they will accomplish in their legal careers.

Speaker Spotlight: Alyssa Reiter

For the second year in a row, Fort Lauderdale partner Alyssa Reiter was a featured speaker at the Eleventh Circuit Court of Appeals Boot Camp: Nuts and Bolts, sponsored by Pincus Professional Education, Inc.

Alyssa presented Eleventh Circuit Motion Practice, along with co-presenter, Kathryn Ender.

To access the recorded version of this program or get access to it OnDemand, go to: pincusproed.com

Interested in Joining Our Team?

Check out our updated list of available positions at: https://lnkd.in/eVtBJvHZ

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