Tuesday, March 17, 2020

Reminders on Prejudice

The Florida First District Court recently granted rehearing and provided an explanation of its decision to affirm a Judge of Compensation Claims in 2K South Beach Hotel, LLC v. Mustelier, No. 1D19-0713. The Court had originally decided the case on October 15, 2019 in a Per Curium Affirmed order. Those ("PCA") orders essentially inform the parties that the trial judge's decision stands and the appeal is denied. But, those orders do not explain why. 

There are a fair number of lawyers that find PCA orders frustrating. They have invested in the appeal, written a brief they think is eloquent and persuasive, then they lose the appeal and do not know why. A lawyer that obtains that outcome can ask the court to expound, by filing for rehearing. I have known several attorneys over the years that did just that. It is somewhat rare for a court to grant such a motion and provide explanation. However, the Court did so here in a January 15, 2020 decision. 

The injured worker in this case was seeking various medical benefits for "complex regional pain syndrome (CRPS) after a right shoulder injury on September 8, 2013." A final hearing was set, and a pretrial stipulation was submitted in preparation for that hearing. Pretrial stipulations or hearings are an opportunity for the parties to clarify or narrow their claims and defenses, to identify witnesses and documents that will be relied upon, and to generally make sure both (all) sides are informed as to what to expect. The use of these pretrial processes is really fundamental to about due process.

In this case, after that process had occurred, "at 5:11 a.m. on the morning of the final hearing, the E/C moved to admit the surveillance (evidence) or alternatively to continue the final hearing." The final hearing appears to have been set for 9:30 a.m.  Shortly after that filing the E/C also filed a motion "to amend the pretrial stipulation (to add a misrepresentation defense and to “clarify” their witness and exhibit lists to include the surveillance evidence)," and again to "continue the final hearing." About an hour before trial, "at 8:25 a.m., they filed the surveillance report." It was delivered to the Claimant when the parties arrived at the Judge's office for trial. 

The trial judge concluded that the late notice regarding the change in defenses and the addition of evidence was prejudicial. The judge also concluded that the E/C had not demonstrated "good cause for the E/C’s delay." After trial, the Judge awarded claimant the benefits. The Court, in affirming the Judge's decision to deny the E/C motions, noted that the correct analysis in such late disclosure of evidence is whether the other party (claimant) "was prejudiced by surprise and that the prejudice was incurable." 

The Court reminded also that whether to allow an amendment to the pretrial is within the discretion of the trial judge. The Court will not reverse such a decision absent an "abuse of discretion." The Court clarified that the amendment in this instance "was not a mere 'clarification' of the witness list." The "pretrial stipulation listed only 'Surveillance rep, if any,'" which the Court noted was "in contravention of the instructions" that said parties should list the "full names of all witnesses.” A valid "clarification" amendment might have been appropriate, and an amendment that did not result in prejudice might likewise have been permitted. But, that was not the case. 

Further, the Court noted that "the lateness of the motion to add a misrepresentation defense was not excusable." From the Court's perspective, the "lateness was caused entirely by the timing of this particular surveillance." And, the purpose of the surveillance, "to determine whether Claimant was using a cane," was not pertinent to the misrepresentation defense "because it does not contradict Claimant’s testimony that she was not using a cane." The focus of this analysis seems very focused on the timing of the motion and the surveillance itself. 

In explaining the possibility of a witness being called for "rebuttal or impeachment," the Court explained that such evidence must be expected to contradict some other evidence. In this instance, it concluded that the surveillance would not have done so. The opinion is instructive on these points and on the subject of cumulative evidence, as regarded a referral for medical care made by one of the physicians involved in the case. It is a reminder of the challenges involved in development, documentation, and disclosure of evidence in litigation. In the end, litigation can be stressful and complicated. Those who are good at it plan, construct, and periodically review their progress. 

2k South Beach will perhaps be a reminder to all litigators that disclosures in the dark of night (or morning) are potentially problematic. A 5:00 a.m. motion to admit evidence might be appropriate in some circumstances. But, some will wonder why such a motion was not accompanied by the surveillance evidence itself. Certainly, video might be memory-intense and difficult to email. But, handing such surveillance to counsel literally minutes before trial might seem obviously short-notice to some also. The lessons of 2K South Beach seem to be more advanced focus on the litigation plan. 

By the time of the pretrial, counsel should know and disclose the evidence. Anything thereafter obtained or disclosed has the potential for such issues of exclusion or inappropriate prejudice. Litigators should remain cognizant of that in both constructing and periodically evaluating that litigation plan.