Subject: Daubert is Back!
In an opinion issued on May 23, 2019 concerning the rules of evidence, the Florida Supreme Court recedes from Frye and adopts the Daubert amendment set forth in 90.702 as a procedural rule of evidence effective immediately.
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Subject: No Nonparty Duty to Preserve Evidence for Potential Litigation
In Shamrock v Remark the Florida 5th DCA reviews Florida spoliation law (and dicta) and holds that absent a legal or contractual duty or a pending discovery request, a non-party has no duty to preserve evidence based on alleged relevance in potential litigation. Summary judgment affirmed.
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Subject: No Non Delegable Duty—Tabraue v Doctors Hospital
In the very well reasoned opinion of Tabraue v Doctors Hospital, on 3/27/19, the 3rd DCA specifically rejected, as a matter of law, non delegable duty liability on the part of a hospital for the actions of independent contractor physicians working in the emergency department.
In adopting and expanding on the 2nd DCA opinion in Reth v Tarpon Springs, the 3rd DCA specifically rejected the 4th DCA decisions inWax & Irving, certifying conflict to the newly reconstituted Florida Supreme Court.
An excellent & well reasoned opinion.
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Subject: Discoverability of Financial Data from Treating Physicians
In Lake Worth Surgical Ctr., Inc. v. Gates, the 4th DCA allowed tailored discoverability (under a confidentiality agreement) of billing and reimbursement data from third party healthcare providers. Examples of potentially discoverable material; percentage of practice comprised of personal injury claimants (presumably treating under LOP) and amounts billed to insurers for same procedures. Good internal citations and discussion of these issues, including detailed instructions on how to obtain this information in an appropriate case. Check it out.