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Florida Fourth DCA rules that trial court properly excluded defense expert testimony in medical negligence trial but erred in denying plaintiff's motion for attorney's fees

On February 14, 2018, in Sanchez v. Cinque, No. 4D16-2530, the Florida Fourth affirmed a final judgment for a medical negligence plaintiff following a jury verdict in the plaintiff’s favor, ruling that the trial court properly excluded certain defense expert testimony but erred in denying plaintiff’s motion for attorney’s fees. The defense expert, a dermatologist who had performed an independent medical examination (IME) of the plaintiff, was prepared to testify that the exacerbation of the plaintiff’s skin condition was not caused by the chemical peel that the plaintiff alleged was performed negligently. However, the expert admitted in deposition that he had not reviewed any photos of the plaintiff before the peel and had assumed that the plaintiff had a pre-existing classic mild distribution of the skin condition, rosacea, because the medical records did not indicate otherwise. The trial court granted the plaintiff’s motion, concluding that the testimony was based on speculation and assumptions and therefore inadmissible under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The Fourth DCA agreed, noting that “[a]lthough courts have recognized that a physical examination and review of medical records may qualify as an acceptable and reliable methodology, see, e.g., In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 762 (3d Cir. 1994), an expert’s opinion should not, as here, be based on assumptions not rooted in any facts actually contained in the medical records relied upon.”

However, the Fourth DCA concluded that the trial court erred in denying the plaintiff’s motion for attorney’s fees and costs arising from the defendant’s failure to timely accept plaintiff’s proposal for settlement submitted pursuant to Fla.R.Civ.P. 1.442 and Section 768.79, Florida Statutes. The trial court had denied the motion based on the alleged ambiguity of the proposal, due to a release provision in the proposal which inadvertently included the names of non-parties rather than the plaintiff (the Fourth DCA referred to this as a “cut and paste” typographical error). The Fourth DCA cited several cases from other districts in support of the proposition that typographical errors do not create a fatal ambiguity if the intent of the proposal is clear. In Mathis v. Cook, 140 So. 3d 654, 656-57 (Fla. 5th DCA 2014), the court recognized that there were typographical errors in the release; however, the errors did not create an ambiguity. Rather, it was apparent from the release that in order to settle the matter with one defendant, the plaintiffs would be required to release all three defendants. Similarly, in Floyd v. Smith, 160 So. 3d 567, 569-70 (Fla. 1st DCA 2015), the court found that a typographical gender error in the proposal did not result in any ambiguity which could have affected appellant’s consideration of the proposal. See also Jefferson v. City of Lake City, 965 So. 2d 174, 175 (Fla. 1st DCA 2007) (typographical error in proposal for settlement citing to nonexistent statute did not render proposal invalid where notice of proposal cited to correct statute number).
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