Executive Director Linda Jude and I recently attended the annual meeting of the Defense Research Institute together. In addition to an outstanding lineup of speakers, this meeting gave Linda and I the chance to network with the Presidents and other executive Directors of State Defense Organizations from all over the country. I walked away impressed by several things.  First and foremost, the FDLA is bringing more educational and professional development opportunities than perhaps any other state defense organization in the country. This is a direct reflection of the tireless efforts of Linda Jude and the great willingness of our membership to give of their time and talent to present at seminars and webinars throughout the year. Since our Annual meeting in St. Petersburg this summer, we have already held our annual litigation boot camp in October and hosted the first of our "Lunch and Learn" webinar series, an excellent presentation on electronic discovery by Michael Bittner of Marks Gray. Our Winter meeting will take place in Big Sky Montana in January and that will be followed by our second "Lunch and Learn" webinar by Benjamin Kashi on automobile liability in February. I am also very excited about a joint webinar that the FDLA is hosting with the Defense Research Institute on January 29, 2016 called "Debunking the Reptile Theory" which will address the use of the reptile theory by Plaintiffs in the discovery phase of tort cases. If you aren't already familiar with the reptile theory, or you have had it used against your clients, this is a MUST attend for you. Past President Frank Pierce regularly talked of giving the membership the absolute most "bang for their buck." The FDLA's commitment to putting on unique and regular educational opportunities, outside of our already great regular meetings, is my way of trying to carry on Frank's sentiment.  If you haven't attended an FDLA educational opportunity in some time, I urge you to sign up for one of these events soon. They are packed with useful and practical information that you can use right away in your practice. If you are too busy to attend, sign up one or more of your associates who can bring the information back to your firm and make sure that everyone in your group is staying on the cutting edge of the legal developments in your field.

 

               I also learned from the other State Defense Organizations that we are not alone or unique in facing the challenges of membership retention in light of budget constraints by law firms and the ever decreasing amount of time defense attorneys have to  dedicate to education and professional development. You should know that the FDLA has been busy trying to address these issues for some time and we are continuing to do everything we can to make the FDLA an efficient and affordable way to be plugged in to the defense community. We are so confident that Florida defense lawyers will see a great benefit to their membership that we have decided to implement a membership initiative for the first quarter of 2016.  As you may already know, the cost of a Young Lawyer membership to the FDLA is only $50.00. For the first quarter of 2016, any defense lawyer in the state, regardless of age or experience, who has not already been a member of the FDLA can join for the Young Lawyer's price of $50.00. This is a fantastic way for new members to be exposed to the organization for virtually no investment and a cost effective way (translation: CHEAP!) for firms that are already active to sign up associates in the firm who may not have joined at this point in the career and to allow those new members to start receiving all of the benefits of membership in the FDLA.

 

               Finally, I was impressed with the commitment of the Defense lawyers from around the country in providing outstanding service to their clients. In my last deFENSE POST column, I discussed the importance of the work we do for our clients. Attorneys who want to constantly learn, constantly improve and who take their oath of representing their clients zealously and competently are alive and well throughout the country. Keep up the good work, and keep fighting the good fight.

 

    

In July 2015, Kevin Davis and a colleague secured a defense verdict for Mintzer Sarowitz in Pinellas County, Florida. The facts of this premises liability case are as follows. The plaintiff, a mother in her 30s, claimed she was in the shower of her rented apartment when a portion of the bathroom ceiling collapsed on her. We represented the apartment owners and management company in this lawsuit. The plaintiff claimed our clients failed to maintain her apartment in a safe and reasonable manner. The trial began with voir dire which connected with every member of the prospective jury panel. An attorney's connection, personability, and likeability when conducting jury selection is often overlooked. However in this trial, the impassioned voir dire put us ahead from the get go.

 

Our main argument was that the plaintiff's ceiling had been recently repaired with no indication it would collapse. The plaintiff testified that the day before her bathroom ceiling collapsed, there had been water leaking from the shower of the unit above. The plaintiff alleged our clients failed to repair the leak in her ceiling, resulting in the subsequent collapse, and introduced photographs showing ceiling debris on the bathroom floor. However, the defendants' maintenance worker testified he repaired the water leak and drained the water from the ceiling over the plaintiff's bathroom. The plaintiff's narrative of the events that lead to the ceiling collapse were scrutinized and questioned by the members of the jury. The jury asked the plaintiff, and her expert witness engineer, multiple questions about the ceiling. One member of the jury even asked if it was possible the plaintiff pulled the ceiling down herself. Once we heard this question, we knew our chances at a defense verdict were increasing.

 

After completion of the Plaintiff's case-in-chief, the Defense moved for a directed verdict regarding the Plaintiff's wage claims. The Court agreed with Mr. Davis' argument that the Plaintiff did not put forth the proper evidence to submit her wage claims to the jury. The Court granted the Defendant's Motion for Directed Verdict, and the issue was removed from the verdict form.

 

Regarding the plaintiff's medical treatment in this case; she was transported to the emergency room after the incident and was diagnosed with cervical sprain and strain. Months later, she was diagnosed with a cervical disc herniation which, she claimed, was caused by the incident. She underwent a series of cervical injections and surgery was recommended for the future. To combat this, we argued the plaintiff had a history of prior cervical complaints, and her neck condition was not caused by the subject incident. In support of our theory we argued an MRI of the plaintiffs cervical spine from 2009 revealed her herniated disc pre-dated this incident. This MRI made the plaintiff change her theory of the case from causation to exacerbation of a previous injury, which was massive for the defense. Another big win for the defense came when our expert radiologist testified in front of the jury regarding the plaintiff's injuries. The radiologist used this opportunity as a teaching moment to break down the plaintiff's injuries, and explain the plaintiff's MRIs showed no change in her disc herniation from 2009 to 2013. The jury listened, and returned a verdict for the defense.

AMICUS
Chair

Caryn L. Bellus

Kubicki Draper

Phone: 305-982-6634 

Email: [email protected]

 

The Amicus Committee is seeking FDLA members ready, willing

and able to author amicus briefs.