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Florida Fourth DCA reverses trial court’s sanctions order against medical negligence defendant and his attorneys

On July 21, 2021, in Cousins, et al, v. Duprey, No. 4D19-3602, the Florida Fourth DCA reversed a sanctions order entered by the trial court against a doctor and his attorneys in a medical negligence case. The trial court issued the sanctions order after concluding that the defendant doctor “did not tell the truth” underdeposition regarding whether he had performed a specific procedure during surgery, and that his attorneys failed to bring this to the attention of the plaintiff, her counsel, or the court prior to the second day of trial “in order to gain an unfair advantage over [the plaintiff] and her legal counsel.”The Fourth DCA disagreed as to both findings, holding that while there was inaccurate testimony, the record did not support a finding that the doctor intentionally testified untruthfully, and there were no legitimate grounds to sanction defense counsel as they were unaware of the inaccuracy of the doctor’s deposition testimony at the time it was given and were under no obligation to correct it. The Fourth DCA also concluded that the $271,487.82 monetary sanction entered against the doctor and the defense attorneys jointly was based on an unreasonable and excessive amount of attorney time spent on the matter by plaintiff’s counsel, citing Hoegh v. Estate of Johnson, 985 So. 2d 1185, 1186–87 (Fla. 5th DCA 2008).

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