Winter 2013

Volume XV, Issue 4  

Inside this issue:
President's Column
Member Profile
FDLA New Members
Defense Verdict
FDLA Committe Case Notes
FLCC 18th Annual Conference
Committee News
FDLA 2014 Annual Meeting Meeting
Two-Minute Primer; Lawyering and Pole Vaulting
Witness Report Card
Why do you think they call it...Boot Camp!
Happy Holidays from FDLA
deFENSE POST Information
Attention Members!

Take advantage of the deFENSE POST to share your verdicts, accomplishments,

recognitions and special achievements with FDLA members. Send your press releases, office relocation notices, defense verdicts and any other items of interest to the FDLA

office via email to [email protected] The content of deFENSE POST depends on

information from

 FDLA members.


The date to remember to submit your "news" for the Spring 2014 issue of deFENSE POST is February 1, 2014 - send your news in NOW!

Dates to Remeber

January 15-20, 2014

Crested Butte, Colorado




June 4-7, 2014

Disney's Contemporary Resort

Lake Buena Vista, Florida



August 7-10, 2014

The Breakers

Palm Beach, Florida




June 3-6, 2015

Disney's Contemporary Resort

Lake Buena Vista, Florida
Watch your emails for notices/information on upcoming FDLA webinars!
Board of Directors

The FDLA Board of Directors meets on a quarterly basis. If any member has items/ issues he or she would like the Board to address, please use the contact information below: 


Daniel J. Santaniello  

Phone: 954-298-6691

Email: [email protected] 

FDLA Office
Phone: 813-885-9888



The next  

Board Meeting is  

Friday, January 17, 2014.


Daniel J. Santaniello


Luks Santaniello Petrillo  

& Jones

110 SE 6th St 20th Floor

Ft Lauderdale, FL 33301

P: 954-761-9900

F: 954-761-9940

[email protected] 


Dale J. Paleschic


Law Office of  

Dale J. Paleschic

14 E. University Ave #213

Gainesville, FL 32601

P: 352-358-0210

[email protected] 


Andrew S. Bolin


Beytin McLaughlin  

McLaughlin O'Hara & Bolin

201 N. Franklin St #2900

Tampa, FL 33602

P: 813-226-3000

F: 813-226-3001

[email protected]


Jeffrey E. Bigman

Immediate Past President

Smith Hood Bigman

444 Seabreeze Blvd #900

Daytona Beach, FL 32118

P: 386-254-6875

F: 386-257-1834

[email protected] 

Quick Links 
Enjoy the Winter 2013 Electronic Edition of

President's Column null

Daniel J. Santaniello

FDLA President

Luks Santaniello

Ft. Lauderdale FL


 Exciting Times Ahead For The FDLA!

First, let me thank FDLA members Chuck Ingram, Andy Bolin, Johnny Sarber, Bob Bonner, Tom Dukes, Philip Moring, Todd Springer, Dave Corso and David Henry for putting together an advanced FDLA boot camp on November 8, 2013 in Longwood, Florida. We had a very good turnout. Some of the courses featured "Taking and Defending 'Big' Depositions", "Using Social Media as a Sword", "Effective Use of Motions in Limine" and Duke's infamous "Case and Statute Law Update". The speakers are experienced practitioners and the reviews were tremendous!  


We also have the FDLA Winter Seminar coming up. This year we head to Crested Butte, Colorado, January 15-20, 2014, over the Martin Luther King Holiday weekend. I consider this to be one of our best events due to its small, intimate size and open discussion and debate of Florida litigation topics.   Mike McCoy is arranging the topics and speakers. Some of the topics include "Current decisions and issues relating to E-Discovery and its use in litigation", "Use of the Daubert challenge in litigation" (very relevant now that the Florida legislature recently adopted Daubert), a "Panel discussion regarding current litigation and trial issues around the state," the Tom Duke's infamous case law update and much more! The speakers' knowledge and experience at these winter seminars is unsurpassed and this event will be both fun and educational. Your day begins with two CLE hours each morning served with breakfast, then attendees hit the slopes by 10:00 am and end the day with a cocktail reception or dinner party. I encourage you to give this trip serious consideration to future winter meetings, especially if you have never attended an FDLA Winter Seminar. It will be a trip to remember and you will learn from some of the best litigators!


This year's 2014 Florida Liability Claims Conference will be at Disney's Contemporary Resort June 4-7, 2014. We are offering Insurance and claims professionals a courtesy rate to attend. Law firms may sponsor clients to attend for as low as $95. This is our biggest event of the year and you will find some of the best Florida litigation topics offered. Plan ahead as the seminar will be well attended, the topics excellent and the Contemporary Hotel always gives us a great rate. Please email [email protected] to purchase or reserve your client vouchers now!


Although it's still far off, consider spending four days with the FDLA and its past presidents at the Breakers in Palm Beach for the 2014 FDLA Annual Meeting! As outgoing President next summer, I was able to obtain some great rates for FDLA attendees at this exclusive hotel and resort. This family oriented event will include first-class accommodations, children games and an awesome line up of speakers and topics along with the annual vote for next year's board. Chill on the beach, chill at the pool or just head to the spa. If you have never attended an Annual Meeting, do not miss this event at the Breakers August 7-10, 2014.


Finally, I want to encourage all members to join our FDLA group on LinkedIn. We strive to provide blog-like case and law updates for our members with comments and strategies as we continue to build our reputation as the leader of Florida's civil defense.


We have a lot of events planned for the FDLA this year and the organization is expanding. We need your involvement. Invite an insurance professional to attend or speak or join the organization. We are a growing organization and are looking for additional committee members too. If you want to stay current in your area of practice, joining an FDLA committee is easy. If you have an interest, please do not hesitate to reach out and give me a call or drop me an email.  


We wish to extend a Happy Holidays to all of our membership and colleagues!  


Member Profile


Devang Desai 


Devang Desai helps national corporations, insurance companies and municipalities minimize their legal exposure in a variety of matters. A partner with Gaebe, Mullen, Antonelli & DiMatteo in Coral Gables, Desai concentrates his practice in insurance defense, products liability, transactional and commercial litigation, and bad faith consultation and litigation. That includes issues related to insurance coverage, policy conditions, disputes over termination, policy defenses and litigation and settlement strategy.


Desai, an AV Peer Review rated by Martindale-Hubbell, joined Gaebe Mullen in 2004 after practicing with an international law firm, gaining experience in the fields of litigation, bankruptcy and creditor rights, as well as government and regulatory matters.


Prior to becoming an attorney, he served as the Interim Ombudsperson and Assistant to the Vice President for Student Affairs at the University of Miami, and later served in the fall of 2003 as the Rapporteur for the Government Procurement Workshop for the eighth America's Business Forum in Miami during the Free Trade Areas of the Americas Conference. During law school, Mr. Desai interned for the Honorable Paul C. Huck of the United States District Court, Southern District of Florida.


Mr. Desai is also an active member of the community, serving as a legal officer for student discipline at the University of Miami since 2003. He is a Vice President of the University of Miami Alumni Association Board and has served as President of the University of Miami Law School Alumni Association in 2012-2013. Mr. Desai is also active with his Fraternity, Pi Kappa Alpha, and serves as the Regional President. Mr. Desai is an active member of the Order of the Arrow and Boy Scouts of America, where he is an Eagle Scout and recipient of the Distinguished Service Award. Additionally, he serves as a member of the South Florida Council, Boy Scouts of America Executive Board and on the National Scouting Alumni Association Committee.


Mr. Desai is admitted to practice in the United States Court of Appeals for the Eleventh Circuit, the District Courts for the Middle and Southern Districts of Florida, and all Florida state courts. Additionally, Mr. Desai was appointed earlier this year to serve as a member of the Ad Hoc Committee on Attorney Admissions, Peer Review, and Attorney Grievance for the U.S. District Court, Southern District of Florida and as a Committee Member of the Federal Bench & Bar Conference Planning Committee, U.S. District Court, Southern District of Florida. He is a member of the American Bar Association, the Defense Research Institute, the Coral Gables Bar Association, the Dade County Bar Association, the Florida Bar, and the Florida Defense Lawyers Association, where he was recently elected District III Director, in addition to serving as chair of the Commercial Law Committee, a position he has held since 2009. Mr. Desai has also been named by Florida Super Lawyers as a 2009-2013 Florida Rising Star. The Daily Business Review recognized him as a 2013 Rising Star. He is also listed in the 2014 South Florida Legal Guide as a Top Up and Comer.


Desai also was selected to be a leadership academy fellow with the Florida Bar's Wm. Reece Smith, Jr., Leadership Academy in 2013. The Wm. Reece Smith, Jr. Leadership Academy is a multi-session training program designed to assist a diverse and inclusive group of lawyers in becoming better leaders within the legal profession, in their chosen path, while enhancing their leadership skills.


"Being involved in the lives of others and making a difference without the expectation of recognition or reward gives life purpose," Desai says. "In serving others, you are able to discover who you truly are. Being involved and engaged is more than an investment in the future - it's fun!" Desai is truly looking forward to his new role as a District III Director with the FDLA and is excited for the opportunity to work with Florida's finest defense lawyers in advancing the causes of the defense bar.


[The MEMBER PROFILE is a regular feature of this newsletter. Would you like to be the next profile? Send your profile in TODAY. If you have suggestions for profiles for publication in future issues of deFENSE POST. Let us know.]




Mark R. Berlick

Beytin McLaughlin McLaughlin Bolin & Willers PA

Tampa, FL


Brandon A. Blake

Beytin McLaughlin McLaughlin Bolin & Willers PA

Tampa, FL


Julie H. Brodis

Estes Ingram Foels & Gibbs PA

Orlando, FL


E. Patrick Buntz

McCumber Daniels Buntz Hartig & Puig PA

Tampa, FL


Chad E. Burgess

Hill Ward & Henderson PA

Tampa, FL


Heather M. Calhoon

Luks Santaniello Petrillo & Jones

Miami, FL


Lyndsy A. Dailey

Gaebe Mullen Antonelli & DiMatteo

West Palm Beach, FL


William D. Finlayson

Traub Lieberman Straus Shrewsberry LLP

St. Petersburg, FL


Daniel P. Fraser

Gaebe Mullen Antonelli & DiMatteo

Coral Gables, FL


Marcella L. Garcia

Luks Santaniello Petrillo & Jones

Tampa, FL


Armando G. Hernandez

Rumberger Kirk & Caldwell PA

Miami, FL


Christopher R. Jones

Traub Lieberman Straus Shrewsberry LLP

St Petersburg, FL


Michael H. Kestenbaum

Luks Santaniello Petrillo & Jones

Tampa, FL


Katherine L. Koener

Traub Lieberman Straus Shrewsberry LLP

St. Petersburg, FL


Ilana B. Lazarus

McIntosh Sawran & Cartaya PA

Ft. Lauderdale, FL


Ann W. Licandro

Reed Law Group PA

Jacksonville, FL


Emily C. Matheson

Neilson & Associates PA

Orlando, FL


T'anjuiming A. Marx

Grower Ketcham Rutherford Bronson Eide & Telan PA

Maitland, FL


Christopher S. Newman

McEwan Martinez & Dukes PA

Orlando, FL


Andrew E. Peluso

Hill Ward & Henderson PA

Tampa, FL


Andrew Rodriguez

Falk Waas Hernandez Cortina Solomon Bonner PA

Coral Gables, FL


Leslie K. Schultz-Kin

Akerman Senterfitt

Tampa, FL


John J. Tress III

Grower Ketcham Rutherford Bronson Eide & Telan PA

Maitland, FL


James P. Waczewski

Luks Santaniello Petrillo & Jones

Tallahassee, FL






Defense Verdict 


Mark Antonelli and Elaine Walter of Gaebe Mullen Antonelli & Dimatteo were successful on appeal in reversing a trial court order granting a motion for new trial on the issues of liability and damages. In the underlying case, involving an automobile accident with issues based upon employer/employee liability as to whether the defendant was in the course and scope of his employment at the time of the accident, Mark was successful in securing a jury verdict in favor of the corporate defendant, with the jury verdict finding that the driver was not in the course and scope of his employment at the time of the accident. The jury found liability as to the individual defendant and awarded damages. The trial court later entered an order granting a new trial as to both defendants as to both liability and damages based solely upon a damages argument made on behalf of the corporate defendant. The appellate court reversed on the basis that the limited objected to closing argument spoke only to the issue of damages, and not to the corporate defendant's liability. The original jury verdict in favor of the corporate defendant was reinstated.  




John Jopling and David Delaney of Dell Graham PA recently obtained a defense verdict in a medical malpractice case in Marion County.  The five day jury trial centered on allegations that Dell Graham's physician client breached the standard of care by negligently assessing and monitoring a patient in sickle cell crisis.  The patient died less than three days after her admission to the hospital.  However, the defense experts explained that the patient was overcome by bone marrow and fat emboli resulting in Acute Respiratory Distress Syndrome despite the best efforts of the health care providers.  The jury deliberated for less than an hour before ruling in favor of our client.



Devang Desai and Elaine Walter of Gaebe Mullen Antonelli & DiMatteo successfully obtained summary judgment for their insurer client in a declaratory judgment action brought by an insured seeking defense and indemnification for an underlying lawsuit. The underlying lawsuit was brought by a psychic entertainer against The Zodiac Group, the psychic's former business partner. In an earlier lawsuit, the psychic has sued Zodiac for unauthorized use of her name and likeness is promoting their psychic services hotline after the date that the contract between the psychic and Zodiac has been

terminated. Although that suit was dismissed, the psychic later filed a second lawsuit - the one at issue in the declaratory judgment action. In the declaratory judgment action, the district court entered

summary judgment in the insurer's favor based upon the court's reading of the claims made policy and its "same wrongful act provision." The 11th circuit court of appeal affirmed the summary judgment in the insurer's favor with a written opinion which can be found at Zodiac Group, Inc. v. Axis Surplus Ins.Co., NO. 13-10941, 2013 WL 5718439 (11th Cir. October 22, 2013).




Marc Greenberg, Junior Partner of Luks, Santaniello, Petrillo & Jones obtained a Final Summary Judgment in a Trip and Fall matter styled The Estate of Frank Romeo, Sr. v. Sebastian Lakes Master Association, Inc. before the Honorable Cynthia Cox on October 7, 2013. The case arose out of a trip and fall incident that occurred within the common elements of the Defendant's premise in 2009. The Estate claimed that the Decedent sustained a subdural hematoma, and died one year later as a result of the fall. The medical bills exceeded $100,000. The Defendant maintained that no defect existed in the common elements and that no one ever complained about any defects to the parking lot before the date of incident. Several depositions were taken which conclusively established that the Defendant had no actual or constructive knowledge of any alleged defect and summary judgment was granted on this basis. The Defendant's Motion for Entitlement to Attorney Fees and Costs was granted on November 7, 2013. Plaintiff has filed a notice of appeal.  



James Waczewski, Tallahassee Partner and a Tampa Associate of Luks, Santaniello, Petrillo & Jones successfully handled the appeal, before the First District Court of Appeal, of a summary final judgment that Todd Springer, Jacksonville Partner, had obtained from the Trial Court in favor of our clients. The appeal is styled Ramsey (Plaintiffs/Appellants) v. Store and Newbern (Defendants/Appellees). The appellate court issued a nine-page unanimous opinion affirming the summary judgment on October 25, 2013. Appellant Mrs. Ramsey was a customer at Appellees' store and parked her car in one of the designated accessible parking spaces. On her return to the car, Appellant Ramsey tripped and fell over a concrete wheel stop that protruded a few inches from underneath her vehicle on the driver's side because she had parked in an angle. Appellants alleged that although there was nothing defective with the wheel stop, it was nonetheless a dangerous and hazardous condition because it was located in a handicap parking space, and because it was redundant. Redundant as there was also a concrete bollard, which held the handicap pole/sign, and already prevented vehicles parking there from accessing the designated walkway to the store. Plaintiffs had presented the affidavit of an expert who opined that the parking space was negligently designed, even though its design did not violate any building code, statute, or industry standard. Our firm argued, on behalf of Defendants/Appellees, that the wheel stop was open and obvious, that Defendants complied with their duty to maintain the premises in a reasonably safe condition, and that the Plaintiffs' expert's personal opinion did not create an issue of fact that would prevent the Court from deciding the case as a matter of law.  Defense expert Rowland Lamb, a professional engineer, had also opined that the accessible parking spaces met the requirements of the Americans with Disabilities Act, the Florida building Code, and the Escambia County Land Development code. The First District Court of Appeal agreed that the trial court properly granted summary judgment and noted that Plaintiff's expert's affidavit was conclusory and did not raise an issue of fact that precluded the entry of summary judgment.  




Deborah Griffin v. Hamer Flo, LLC d/b/a Whiskey River


The managing partner and associate Matthew C. Martin of Gaebe Mullen Antonelli & DiMatteo obtained a defense verdict in this slip-and-fall case pending in Duval County, Florida. Plaintiff alleged she fell on a transient substance in the Defendant's restroom resulting in coccyx fracture, and aggravation of pre-existing conditions including post-polio syndrome, that manifested in constant radiating lumbar and hip pain. Plaintiff underwent multiple pain injections, a spinal cord stimulator implant, subsequent removal of the spinal cord stimulator, and alleged MRSA infection relating thereto. Plaintiff asked the jury for $1.8MM in closing argument.




Michael J. Thomas and a colleague of Pennington, P.A. (Tallahassee), recently obtained a defense verdict in Leon County in the case of Martha Alexander v. Tallahassee Memorial Healthcare, Inc. On October 16, 2006, Martha Alexander (age 55) was hired as a Registered Nurse in the surgical unit at Tallahassee Memorial Hospital ("TMH"). She was terminated a year later on October 24, 2007.


The Plaintiff filed a complaint alleging that she was terminated for being a whistleblower and for objecting to and refusing to participate in policies and practices that she believed violated various laws, rules and regulations. The Plaintiff's whistleblower claim was based on her contention that TMH used an unlicensed nurse to supervise and provide care and treatment to patients. The Plaintiff even went so far as to contact the Board of Nursing to inquire as to the status of her supervisor's Florida RN License and to report him for practicing nursing without a license.


During the course of the trial, Defendants presented evidence illustrating that Martha Alexander was counseled and reprimanded on several occasions for poor performance, including improper sterile technique, improper counting of surgical equipment and being verbally abusive to the staff. Her supervisors testified that several surgeons had complained about the Plaintiff's poor performance and at least two requested that she not be assigned to their operating rooms in the future.


The final incident occurred on October 4, 2007, wherein the Plaintiff provided a surgeon with incorrect gas during an eye surgery, which could have ultimately resulted in blindness to the patient. Ms. Alexander attempted to shift the blame to another nurse, but was ultimately suspended pending further investigation.


In addition, the Defendant was able to discredit the Plaintiff's allegation that she was terminated for being a whistleblower because her supervisor's job description as a Service Line Administrator did not require him to have a Florida Nursing License. In addition, the Plaintiff was unable to prove her allegation that her supervisor ever provided hands on care to a patient.


At the commencement of the case, the Defendant filed a Proposal for Settlement in the amount of $10,000. The Plaintiff declined. After a one week trial, the jury returned a verdict for the Defendant, Tallahassee Memorial Hospital.



Patrick Knight of Victor Rams & Associates received a defense verdict in a motor vehicle negligence case tried in Miami. Plaintiff claimed a surgical herniated disc in her neck and a cyst in her right knee were caused by the motor vehicle accident. The impact of the collision was rather large with a pushed in trunk and a cracked bumper that fell off the vehicle after impact. Plaintiff's counsel asked for $150,000 in closing argument. The jury deliberated for twenty minutes and awarded $0. Defendant is now moving for fees and costs.




There was a defense verdict in the Fourth Judicial Circuit, Duval County medical malpractice case of AMANDA R. ASHFORD and SHAWN T. ASHFORD, as parents and natural guardians of JACOB D. ASHFORD, a minor, Plaintiffs, v. AMY W. WRENNICK, M.D.; NORTH FLORIDA OBSTETRICAL & GYNECOLOGICAL ASSOCIATES, P.A., Defendants, 16 2009 CA 003470, Division CV-H.  


Per Plaintiffs, Defendant, Amy Wrennick, M.D., was allegedly negligent during a left shoulder dystocia by pulling too hard on the baby's head and neck as referenced in Dr. Wrennick's medical records for treatment of her left fifth metacarpal shaft fracture that was sustained during delivery. The defenses were Dr. Wrennick's care and treatment met the prevailing standards of care, and maternal forces in the face of a shoulder dystocia were the cause of injury.  


Minor Plaintiff had sustained a permanent left brachial plexus injury at C5, C6, and C7 and underwent primary surgery to repair the damaged nerves, physical therapy, and nerve reconstruction with bilateral lower extremity sural nerve grafting. Plaintiffs' demand at trial was $1.1 million.  


Defense counsel were Richard E. Ramsey and a colleague of Wicker, Smith, O'Hara, McCoy & Ford, P.A.   




D. James Kadyk of Kadyk & Delisie PA is pleased to report that they obtained a defense verdict in a jury trial in Sumter County, Florida tried during the week of November 18. This was a farm liability case where the plaintiff was knocked down by a sheep owned by their client. Plaintiff suffered a badly fractured knee and underwent three surgeries ultimately culminating in a total replacement. Plaintiff requested an award of $1.3 Million in opening statement. The jury was out approximately 40 minutes.   




Gerald W. Weedon and Michael B. Bittner of Marks Gray PA obtained a defense verdict in Volusia County last month. This was a food poisoning case in which plaintiff, a 21 year old man with a

prior kidney transplant, alleged that he had severe gastrointestinal illness approximately three hours after eating allegedly contaminated food. Plaintiff alleged that as a result of food poisoning, he was unable to retain his kidney anti-rejection medication and suffered loss of his transplanted kidney. Weedon and Bittner defended the case on the grounds there was no evidence the food was contaminated, no evidence plaintiff in fact suffered from food poisoning, and no evidence of any causal relationship between the alleged negligence and plaintiff's kidney loss. Following a five day trial, the jury returned a verdict in favor their client.  



Below are Corrected Verdicts from the
Fall DeFENSE POST Newsletter

 Maureen Luongo v. Publix (15th Judicial Circuit)

Case No. 50-2012 CA 006405 XXXX MB AH.


Defense counsel sought and obtained summary judgment for this slip-and-fall incident. The incident was captured on video where plaintiff was observed walking on a long rug in front of a seafood case. When plaintiff took her first step onto the rug, it moved forward, causing her to fall. The video also showed water on the rug. Summary judgment was granted because the record contained no evidence as to how long the water was on the rug, whether or not a leak from the case existed, or notice to Publix of the condition.


Crystal Goodbread v. Publix (15th Judicial Circuit)

Case No. 50-2011 CA 012623 MB AA.


Defense counsel successfully obtained summary judgment in this slip-and-fall case. This suit involved allegations of a leaking refrigerator case. Plaintiff testified that there was a one or two foot puddle of water that she believed came from the refrigerator case. Because the suit was filed several years after the incident, initial recorded statements were not preserved and witnesses and employees had no present recollection of the incident. For summary judgment purposes, defendant conceded that there may have been water on the floor as described by the Plaintiff, but there was no evidence of notice, the time period the water was there before the incident, or negligence on the part of the defendant.





FDLA Committee 

Case Notes


NOTE: FDLA has added a new section to the deFENSE POST in addition
to the FDLA Committee News section. The new FDLA COMMITTEE
CASE NOTES will contain cases and opinions submitted by
FDLA's committees pertaining to their practice areas.



The Florida Supreme Court recently issued an opinion

Maronda Homes, Inc. of Florida v. Lakeview Reserve Homeowners Association Inc. which broadened the common law implied warranty of fitness and merchantability, also known as an implied warranty of habitability. The Court held that the implied warranties of fitness and merchantability apply to defects in offsite improvements that provide essential services to the community, affirming the decision of the Fifth District Court of Appeal. The Court also ruled that Section 553.835, Florida Statutes, adopted by the Florida legislature on July 1, 2012, only applies to causes of action that accrue after the effective date of the statute.




Several Labor and Employment Cases on Supreme Court's Docket.


On October 7, 2013, the Supreme Court opened the 2013-2014 Term by hearing oral argument in one of the many cases it may review concerning labor and employment issues. Below is a summary of some of the cases and issues to be addressed this term.


Heimeshoff v. Hartford Life & Accident Insurance Co.  

The Court will decide when the statute of limitations begins for judicial review in ERISA litigation.


Lawson v. FMR LLC 

Section 806 of the Sarbanes-Oxley Act prohibits retaliation against those who report various types of misconduct and violations of the securities law. The Court will decide whether the protections against retaliation extend to employees of contractors and subcontractors of publicly-traded companies.


NLRB v. Noel Canning 

At the beginning of 2012, President Obama filled three vacancies on the five-member NLRB. NLRB decisions decided after January 4, 2012, may be invalidated if the Court finds that President Obama's recess appointments were unconstitutional.


Schuette v. Coalition to Defend Affirmative Action 

The Court will consider whether it is unconstitutional for a state to amend its constitution to prohibit public universities from using race or sex as the basis for discriminatory or preferential treatment in the admissions process.


Sandifer v. United States Steel Corporation 

Under Section 203(o) of the Fair Labor Standards Act ("FLSA"), an employer does not have to pay its employees for "changing clothes" if this exclusion is expressly provided for in a collective bargaining agreement. The Court's definition of "changing clothes" may change the range of activities that employers must pay for as wages.


Unite Here Local 355 v. Mulhall 

The Labor Management Relations Act ("LMRA") forbids employers from paying for or offering anything of value to employee unions. The Court will decide whether agreements between an employer and union (such as agreements concerning neutrality or access to facilities) are illegal payments.


The Fourth District Court of Appeal issued an opinion on November 6, 2013, in Judith McClure vs. Publix Supermarkets which supports the position the defense often takes regarding taking the deposition of a plaintiff prior to production of store security video of an accident.  In that case, the plaintiff requested a copy of the store security video of the slip and fall accident in a request for production.  Publix did not respond to the request.  Thereafter, the plaintiff filed a motion to compel.  Publix contended that it was entitled to take the plaintiff's deposition prior to her being able to see the video so that Publix could obtain her version of the incident unaided by review of the actual video of it.  The trial court denied the motion to compel permitting Publix to delay production of the video until it had completed the deposition of the plaintiff.  The Appellate Court upheld the trial court's decision by finding that trial court's have broad discretion in overseeing discovery and its timing. The plaintiff failed to show that if she answered questions at deposition, prior to production of the video, that any harm would occur or that the video would somehow conflict with her statements at deposition. The Appellate Court denied certiorari review finding the trial court did not abuse its discretion.



In a case of first impression, the Fourth District Court of Appeal held that the pecuniary amount of an insurer's obligation to tender a defense to its insured in an underlying suit is properly considered in determining the jurisdictional amount in a declaratory judgment action to determine coverage. In Elisias v. Geico General Insurance Co., 118 So. 3d 919 (Fla. 4th DCA 2013), GEICO initiated a declaratory judgment action after Yolene Elisias filed a personal injury action against its insured. GEICO filed the declaratory action in the circuit court where the personal injury action was pending. After the court entered a final judgment in GEICO's favor, Elisias appealed, arguing that the circuit court lacked subject matter jurisdiction because the amount in controversy was below the $15,000.00 threshold required for circuit court jurisdiction since the action was based on the policy limit of $10,000.00.

Thus, at issue for the Fourth District was whether the insurance company's cost of tendering a defense in the personal injury suit could be included in the amount in controversy for jurisdictional purposes. Noting that no Florida court had previously considered the issue, the Fourth District looked to the few federal cases that addressed the issue. Finding these cases persuasive, the court held that "the pecuniary value of an insurer's obligation to tender a defense to its insured in the underlying suit implicating the coverage issue is properly considered in determining the existence of the jurisdictional amount in an action to determine coverage." Thus, the court affirmed judgment in GEICO's favor.


The Florida Supreme Court recently dealt a blow to the defense in Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013), when it resolved a conflict between the Third and Second District Courts of Appeal. Specifically at issue was section 768.20 of the Wrongful Death Act (the Act), which states: "When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate." Thus, the court considered whether this language requires the dismissal of a personal injury action and the initiation of a separate, independent wrongful death action by the personal representative of the decedent's estate when injuries to a party plaintiff result in his or her death.

In Capone, Frank Capone died during the pendency of his personal injury lawsuit against several tobacco manufacturers. After he died, his wife Karen, acting in her capacity as personal representative of his estate, moved to substitute herself as party plaintiff and plead a wrongful death action in the alternative. Philip Morris filed a motion to dismiss, arguing that the Act prohibits conversion of a personal injury action into a wrongful death action when the injuries to a party plaintiff result in his or her death. Thus, Philip Morris argued that Karen could not amend the complaint to state a cause of action for wrongful death, and instead had to file a new action for wrongful death separate from the pending action for personal injury. The circuit court agreed, denied Karen's motion to amend and to substitute, and dismissed the entire action as barred by the Act.

The Third District affirmed the dismissal, holding that the original personal injury action could not be amended after Frank's death to include a wrongful death claim. The Third District reasoned that upon the death of the plaintiff, any surviving claim must be brought as a new and separate wrongful death action-it could not be brought as an amendment to the personal injury action. The Supreme Court disagreed, and held that when a personal injury action "abates" pursuant to section 768.20, it does not require that the entire case be deemed immediately void and dismissed. Instead, the case should be suspended until the personal representative of the decedent's estate is added as a party to the pending action and receives a reasonable opportunity to amend the complaint to state the damages sought under a wrongful death claim or to state both a claim for survival damages and, in the alternative, wrongful death. Accordingly, the court quashed the Third District's opinion. 


Notes submitted by Erica Tate Healey 

Erica Tate Healey practices in the firm's 

Banker Lopez Gassler

Products Liability and General Trial practice groups,  

with a focus on aviation torts, vehicular torts, products  

liability, construction litigation, professional liability,  

employment law, and claims arising under the  

Americans with Disabilities Act.  


PROFESSIONAL LIABILITY COMMITTEE In Glen Murphy v. Adolfo C. Dulay, M.D., WL 5498140, Federal Court Judge Robert Hinkle issued an Order holding that the ex parte provision of the Florida Medical Association's Spring 2013 tort reform legislation invalid.  Judge Hinkle held that section 766.1065(3)(E), Florida Statutes, which requires a plaintiff to authorize ex parte interviews of other healthcare providers as a condition precedent to pursing a medical negligence claim, was pre-empted by HIPAA.  Judge Hinkle determined that such mandated consent to ex parte interviews circumvented HIPAA's requirement of patient's consent or court of administrative order for disclosure of patient's information in connection with a potential medical-negligence claim.

PROFESSIONALISM NOTE "Members of The Florida Bar, law professors and law students should study the instant case as a glaring example of unprofessional behavior." The Florida Bar v. Norkin, 38 FLW S786 (Fla. 2013)   In a stinging example of how not to behave, the Florida Supreme Court has imposed a two year suspension, public reprimand and mental health evaluation/treatment upon a litigation attorney for unprofessional behavior towards the presiding Judges, a Senior Judge, opposing counsel, Florida Bar counsel and The Florida Bar Referee. Notwithstanding a previous admonishment for professional misconduct and his defense that his conduct was merely "annoying" or "irritating", the Court lowered the boom on the respondent attorney for, among other unprofessional conduct:   
  • Accusing a Senior Judge of a "cozy, conspiratorial relationship" with opposing counsel;
  • Accusing the Trial Judge of acting "at the beck and call" of his opponent;
  • Repeatedly yelling and screaming at two successive trial judges; and
  • Repeatedly disparaging opposing counsel, including stating loudly in the courthouse hallway that opposing counsel was "underhanded and a scumbag."

In mitigation, the Referee noted:


However delusional, Respondent truly believed he was acting on behalf of his client in a zealous and appropriate manner.


The Florida Supreme Court is increasingly frustrated by unprofessional conduct on the part of a small minority of Florida lawyers and they clearly have had enough. This instructive decision - "what not to do!" - follows on the heels of the Supreme Court's adoption of the Code for Resolving Professionalism Complaints and documents the 20 year progression of professionalism as espoused by The Florida Bar and the Florida Supreme Court. The Court also cites to several of its recent decisions and the heightening level of discipline meted-out for unprofessional conduct. While such a case is indeed unfortunate, every lawyer should take the time to read this decision and take it to heart.



J. Charles Ingram

Board Certified Civil Trial Lawyer

Estes, Ingram, Foels & Gibbs, P.A.

Orlando, Florida





Henderson, Franklin, Starnes & Holt, P.A., is pleased to announce that Attorney Traci McKee was elected to the Lakes Park Enrichment Foundation Board of Directors. The Foundation is dedicated to helping restore Lakes Park to a native Florida wildlife environment by assisting Lee County Parks &  Recreation with the implementation of its $30 million master plan.


McKee concentrates her practice on defending professionals in malpractice lawsuits and grievance disputes. She also represents individuals, corporations, and governmental entities involved in personal injury, products liability, and toxic tort disputes. In addition to her trial practice, McKee also represents the firms' clients in appeals, primarily related to torts and insurance litigation. She is a member and serves on the Florida Defense Lawyers Association Board of Directors.


In 2010 and 2011, McKee was honored with the James A. Dixon Young Lawyer of the Year Award from the Florida Defense Lawyers Association. The award is given annually to a young lawyer who exceeds the standards of excellence, dedication and commitment to the FDLA and its goals. For four consecutive years (2010-2013), McKee has been recognized by Florida Super Lawyers® magazine as a "Rising Star" in the field of civil litigation defense.


McKee received her undergraduate degree from the University of North Florida (B.B.A, summa cum laude, 2000) and her law degree from    

Stetson University College of Law (J.D., summa cum laude, Valedictorian, 2007). She can be reached at 239.344.1263 or via email at [email protected]


18th Annual 

Florida Liability

Claims Conference 2014

- June 4-7, 2014 - 


 Disney's Contemporary Resort

4600 North World Drive

Lake Buena Vista, Florida



Based on previous years, we expect this program to provide  

15.0 CLE credits and 10.0 insurance credits. 


A block of rooms is being held for the
2014 Florida Liability Claims Conference
at Disney's Contemporary Resort.

Room reservations can be made now by calling 407.939.4686.
Conference Name is Florida Liability Claims Conference 2014.

Disney has created a Micro Site for FLCC attendees to book
reservations, do online check-in, purchase discounted theme park tickets and much more!

Watch for more information
coming in early 2014!

Sponsored by
Florida Defense Lawyers Association





Caryn L. Bellus [Kubicki Draper]

Email: [email protected]


If any member has an issue they would like considered for an  

FDLA Amicus Brief, please contact the Amicus Committee chair.





Warren B. Kwavnick [Cooney Trybus]

Email: [email protected]


Angela C. Mason-Reimer [Mason-Reimer]

Email: [email protected]


No report.


Devang Desai [Gaebe Mullen]

Email: [email protected]


Updates are sent to committee members and the

committee is always looking for authors for TAQ articles.




Michael B. Bittner [Marks Gray]

E-mail: [email protected]


The Construction Law Committee is seeking members interested in being

part of the Committee. Please email Mike Bittner ([email protected])

if you are interested or if you have any construction law news or materials  

that could be shared with the Committee.


Please see the FDLA Committee Case Notes Section.  




J. Charles Ingram [Estes Ingram]

Email: [email protected]


David A. Corso [Fisher Rushmer]

Email: [email protected]


An Advanced Litigation "Boot Camp" was presented on November 8 with 40+

attending. Please contact us with suggestions/ideas for webinars.



Dorsey C. Miller [Luks Santaniello]

Email: [email protected]


A new Chair has been named for this committee. If you want to be a part

of this new committee, please contact the committee chair. 



Joseph R. Flood Jr. [Dean Ringer]

Email: [email protected]


No report.




Christienne H. Sherouse [Gaebe Mullern]

Email: [email protected]


The committee submitted two (2) articles for the Winter 2014 issue

of Trial Advocate Quartly. 




Michael P. Spellman [Sniffen & Spellman]

Email: [email protected]


Please see the FDLA Committee Case Notes section. 





No report.




Todd T. Springer [Luks Santaniello ]

The committee submitted an article for the Winter 2014 issue
of Trial Advocate Quarterly.

Please see the FDLA Committee Case Notes section.



Mark C. Greene[Banker Lopez]

Email: [email protected]


The committee, working diligently through its new membership, submitted its first
article for publication to the TAQ since the early Bush presidency. We intend to
submit many more, and we are actively recruiting new members with an interest
in sharing ideas, getting published and defending product liability cases. For more information regarding the committee, please feel free to contact either myself or
vice chair Larry Smith for more insight as to where we are going moving forward. Wishing all FDLA members a safe and joyous Holiday Season.

Please see the FDLA Committee Case Notes section.



Carrie E. Roane [Guilday Tucker]

Email: [email protected]


Renee D. Faried [Beytin McLaughlin]

Email: [email protected]  


Committee Members, Carrie Roane and David Delaney recently participated  

as panelists in the Balancing Life and Law Seminars at the University of Florida  

Levin School of Law and Florida State University School of Law.  The Seminars

are produced by the Florida Bar's Young Lawyers Division and Standing  

Committee on Professionalism and have been highly regarded by the Florida Bar  

and Law Schools for their commitment to teaching professionalism to law  

students and imparting practical knowledge to new lawyers about how to  

achieve a healthy balance between life and the practice of law.  


Please see the FDLA Committee Case Notes section.



Matthew J. Lavisky [Butler Pappas]

Email:[email protected]


The Trial Advocate Quarterly Committee would like to welcome its newest member, Michael Forte. Michael is a partner in the Tampa office of Rumberger, Kirk & Caldwell. 

Jill F. Bechtold [Marks Gray]
The FDLA is proud to announce the formation of its newest committee: Women  
& The Law. The committee is chaired by Jill Bechtold of MarksGray, P.A. in  
Jacksonville and Sally Seltzer of Quintairos, Prieto, Wood & Boyer, P.A in Miami.  
The committee will focus on supporting women lawyers in the legal defense  
community through valuable networking, education and resource opportunities.

Women & The Law is actively developing its membership base and seeking new members interested in participating and leading this state-wide group. If you 
know anyone interested in membership, please forward them to Jill Bechtold  
at [email protected]. Women & The Law meetings and events
will begin in January 2014. 


David H. Roos [Henderson Franklin]

Email: [email protected]


No report.




John M. Miller [Henderson Franklin]

Email: [email protected]


The Young Lawyers Division of the Florida Bar has recently begun advertising a mentoring program for current law students within the Florida Bar Law Student  

Division which offers young lawyers a great way to get involved in mentoring early on. The opportunity is not just limited to young lawyers, but rather is available for  

all lawyers of any age.  The program started in the spring of 2012 when the Florida  Bar YLD Law Student Division launched a mentoring program at two Florida law schools.  Since that time, the Division has grown the program exponentially. This  

year, the Division is hosting its inaugural statewide mentoring program through

which students at all twelve Florida law schools will be paired with an attorney:  

(1) in the geographical area where the student currently attends law school, or  

(2) outside of the student's present location who practices in a geographical area  

where the student desires to practice upon admittance to The Florida Bar or in an

area of law in which the student is particularly interested. The Law Student

Division is looking for mentor attorneys to participate in the program.  

To help the Division achieve its goal, interested attorneys must simply  

complete the easy online registration form at

This seems like it could be a great way for FDLA young lawyers and lawyers
of all ages to get involved and invest in the future of the defense bar.
It could also serve to introduce young lawyers to the FDLA even
before they graduate from law school.


Annual Meeting

August 7-10, 2014


A spectacular resort destination on Florida's Atlantic coast,  

The Breakers Palm Beach, has lured generations of discerning  

travelers to its idyllic, Italian-Renaissance setting.


Only one legendary oceanfront resort in North America
offers you everything under the sun. The Breakers Palm Beach
offers the best of Florida.


For The Breakers Experience Tour, go to:  


Watch for room reservation and registration information - you will

want to attend the 2014 FDLA Annual Meeting!


The Breakers, Palm Beach 

Once you stay, you'll understand



Two-Minute Primer
Lawyering and Pole Vaulting
By Thomas E. Dukes III


What do good lawyering and pole vaulting have in common? The answer is you can't learn to do either one simply by watching. Any young lawyer has got to actually try out the skills that he or she hopes to perfect. Sill in lawyering is, like skill in pole vaulting, acquired from years of practice.


Practice means doing. Young lawyers struggled for opportunities to actually lawyer at a high level. Commonly they are sent to depositions with the instructions, "whatever happens don't say a word". Clients with some justification want senior partners to try cases. Thus if you are going to achieve your potential as a trial lawyer, you have to shoehorn your way into the arena.


Take every opportunity you have to speak publicly and to practice the art of lawyering. Mediations, for example, are a great proving ground for young lawyers. Every mediation should be treated as if it were an opening statement in trial. You don't necessarily need blow-ups or powerpoints; what you need is a good grasp of the facts, and a coherent message delivered effectively, when possible without notes. Remember at a mediation are other lawyers, the mediator, adjusters, and clients. Strive always to be the most prepared and most articulate lawyer. You should work to give the opening statement for a group of defendants first whenever possible. If it's a multi-party case, and you don't seize the moment, by the time the spotlight turns to you, it may be you are left with "we are sorry too, and you've heard it all from other people".


Every year try to add one significant speaking engagement to your C.V. This may involve giving speeches to indifferent groups and odd hours and in inconvenient locations. You may have to seek out the engagement. However the more you speak in front of a crowd, the more comfortable you will become in doing so.


Finally, learning your craft involves the risk of failure. Anything in life worth doing carries that risk. Obviously we sleep better when we are not pushing ourselves, when we are not on the line, when we are not in the spotlight, and when we are not the center of attention. However if we don't push ourselves, we don't become the lawyers that we can be.


In sum, if you want to be a trial lawyer, you are going to have to force your way into situations when you can learn and apply your craft. It isn't easy, it's extra work, the risk of failure goes up, and you don't sleep as well. However like pole vaulting, if you work hard you will achieve new heights.



Tom Dukes is Board Certified Civil Trial Lawyer.

He is former FDLA President.


NOTE: The Tips for Young Lawyers Column is moving to the Trial Advocate Quarterly. FDLA says "Thank you" to Tom Dukes for authoring this column for the deFENSE POST for the past several years.  

Witness Report Card
Four "A's" You DO NOT Want Them To Earn

There are four potent psychological landmines that will damage your witness's credibility every time:

Anxiety, Anger, Arrogance, and Apathy. One or more of these factors routinely results in major headaches for trial attorneys attempting to prepare their witnesses for deposition or trial testimony. The good news: all of these are detectable and fixable.


Let's take a closer look:


  • Anxiety - By far the top barrier to effective communication, anxiety can conceal a witness's true character, motivation and credibility. Even worse, the physical and psychological symptoms of anxiety send a message of "I am not prepared, I am scared, I am intimidated, and I have no confidence in my answers." To achieve the perception of credibility, witnesses need to be confident, assertive, and professional---and anxiety will destroy all three, and thus destroy credibility. Some level of anxiety is normal, and perhaps good, as we want the witness to be "on their toes" during questioning. The Answer: thoroughly evaluate the witness's anxiety levels and find the SOURCE; often the source of the anxiety is deep-rooted and is completely unrelated to the case.


  • Anger - Many witnesses are pretty ticked off that they have to go through the legal process, and many are furious because they feel that the case has no merits. Angry witnesses are very dangerous, as they can exhibit: Volcanic and random outbursts, a tendency to "jump the gun" in defending oneself, and an overuse of sarcasm. Plaintiff attorneys LOVE angry defense witnesses, as their anger severely impairs their communication skills and subsequently wipes out their credibility. We interview over 5,000 jurors annually and they tell us that: "poise, composure, and professionalism = credibility." The Answer: give the witness the opportunity to vent and process their anger before their testimony preparation; let them blow off steam, let them heal, and then proceed with preparation.


  • Arrogance - Want to get a jury REALLY mad at you? Have your witness display every single time. This is a major problem with higher level witnesses (i.e., C-level executives, managers, celebrities, physicians, etc). The strategic (and economic) cost of arrogance is very high, as the testimony becomes immediately and permanently poisoned. On paper, these should be the most credible and effective witnesses of all, given the high levels of intelligence and professional achievement involved. The problem is that in the business world, a good dash of arrogance may not only be beneficial to one's career, it may even be necessary for professional survival. The Answer: carefully remove arrogance (without interrupting confidence/assertiveness) and carefully insert a dose of humility (but only moderate amount).


  • Apathy - So your witness has no passion? No conviction? No motivation? Guess what?-they have no credibility either. Apathy typically occurs because the witness doesn't care about you, your case, or the consequences. Apathy is particularly problematic with witnesses that are no longer tied to the defense (i.e., former employees). This makes sense, as the witness has to do all of the work, go through the grueling litigation process, put up with all of your phone calls and demands, and then receive no reward in the end. Sounds fun to me, where do I sign up?
    The Answer: make the process worth their while; create internal and emotional rewards that will be appealing.


Anxiety, anger, arrogance and apathy all negatively impact your witness's CREDIBILITY at the jury level, even if they are telling the truth! All too often, these factors are ignored, underestimated and given little or no attention in the witness preparation process. In fact, the vast majority of these problems are first detected during the deposition, when everything is on the record and each mistake hurts. The price of detecting and fixing these issues early in your case is far more economical than the costly result of your witness losing their credibility during deposition, or even worse, on the stand.


Bill Kanasky, Ph.D. is a Senior Litigation Consultant with Courtroom Sciences, Inc. a full-service, national litigation consulting firm with offices in Dallas, TX and Chicago, IL. Dr. Kanasky specializes in a full range of jury research services including the design and implementation of mock trials and focus groups, venue attitude research, and post-trial interviewing. Additionally, his systematic witness training methodology is efficient and effective, and is designed to meet each witness's unique needs, while concurrently teaching core principles of persuasive communication.


(c) 2006 All Rights Reserved - Reprinted with permission. Do not reproduce this document or its contents without written permission. However, feel free to forward this article to all of your colleagues and friends.


Chuck Ingram

Why Do You Think They  
Call it Boot Camp?
40+ Brave souls survive another
FDLA Advanced Litigation Boot Camp!

The room was cramped and noisy. The air conditioner was on the fritz. The sandwiches were cold and the drinks were lukewarm. However, the speakers were great!


On November 8, 2013, 40+ FDLA members (old and new) from all over Florida attended FDLA's Advanced Litigation Boot Camp in the woods outside of Orlando. The Florida Bar awarded 8 hours of CLE/Certification Credit for those who updated and honed their litigation skills under the tutelage of our esteemed faculty:



  • Taking and Defending 'Big" Depositions
    (Andy Bolin & Johnny Sarber)
  • Utilizing Social Media as a Sword/Shield
    (Todd Springer)
  • Effective Use of Motions in Limine/Daubert Hearings
    (Bob Bonner)
  • Ethics and Professionalism in Litigation
    (Chuck Ingram & David Corso)
  • Effective Mediation Preparation and Strategy
    (David Henry)
  • Case and Statute Law Update
    (Tom Dukes & Philip Moring) 


Philip Moring and Tom Dukes



Stay tuned for  

Advanced Litigation Boot Camp 2014

Special Forces!



For a


and for the


From FDLA!

Copyright © 2013


deFENSE POST is published four times a year by the Florida Defense Lawyers Association.


While information in deFENSE POST is believed to be accurate, it is recommended that interested parties telephone or write to the submitting attorney named in each case report or article before incorporating the information into their work product.


Items of interest to the membership are welcome and may be sent to the

Association office for inclusion in deFENSE POST.


Linda L. Jude, Executive Director

Florida Defense Lawyers Association

6105 M Memorial Highway

PO Box 260037

Tampa, Florida 33685

Phone:(813) 885-9888

Fax:(813) 885-5547

E-mail: [email protected]