DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ROBERT COUSINS and SCOTT SANKEY,
Appellants,
v.
IVETTE DUPREY,
Appellee.
No. 4D19-3602
[July 21, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; William W. Haury, Jr., Judge; L.T. Case No. CACE11-
10187(13).
Dinah S. Stein of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for
appellants.
Dennis Grossman of Law Office of Dennis Grossman, Miami, and Max
R. Price of Law Office of Max R. Price, P.A., Miami, for appellee.
MAY, J.
Two attorneys appeal a sanctions order entered against them during a
medical malpractice trial. They argue the trial court erred in sanctioning
them and in determining the amount of the sanction. We agree and
reverse.
The underlying case arose from a two-count complaint for medical
malpractice.
The plaintiff suffered from Crohn’s disease. In 1990, she underwent
surgery to remove certain diseased tissue. The defendant doctor first
started treating the plaintiff nine years later. In 2007, the plaintiff’s
gastroenterologist referred her to the doctor to surgically remove a
stricture and reconnect the small bowel. In 2008, the doctor performed a
laparoscopic small bowel resection.
In the summer of 2009, the plaintiff suffered another flare-up of her
Crohn’s disease. A colonoscopy revealed inflammation and a protrusion
of the small intestine (“prolapsing”) at the site of the ileocolonic
anastomosis. The prolapse was caused by the stricture at that location
that the doctor was supposed to have removed in 2008.
The plaintiff was referred to another physician for a second opinion.
She underwent another surgery where the stricture at the ileocolonic
anastomosis and two other strictures were removed and reconfigured.
The plaintiff sued the doctor who performed the 2008 surgery and his
professional association (“P.A.”). She alleged he was negligent in failing to
“remove the culprit stricture” at “the site of [the ileocolonic] anastomosis”
and failing to inform her “that he did not remove the stricture . . . .” Count
two alleged vicarious liability against the doctor’s P.A.
The doctor and his P.A. “specifically” denied the allegations and
asserted as an affirmative defense that “the care and treatment rendered
by [the defendants] were within the requisite standard of medical practice,
and at no time was there any deviation from this standard.”
Discovery
The doctor submitted the following answer to an interrogatory
propounded by the plaintiff.
6. Did you perform the surgery on the [p]laintiff, specifically
treatment of the stricture at the ileocolonic anastomosis,
during the surgery on or about January 14, 2009? If so,
please describe specifically any and all evidence of this
treatment. If not, why not?
ANSWER: The [p]laintiff’s surgery was performed on January
14, 2008, not 2009. Yes, the stricture at the ileocolonic
anastomosis was treated during that procedure. [The doctor]
recalls treating that area. In addition, three (3) segments of
small intestine were submitted for pathologic review.
Attorney Cousins’ name appeared below the signature block but only
attorney Sankey’s email address was listed. Attorney Sankey later testified
that he “more likely than not” assisted the doctor with the interrogatory
answers. Attorney Cousins testified he did not recall assisting the doctor.
2
Attorney Sankey later attended the doctor’s deposition. Plaintiff’s
counsel questioned the doctor regarding the operative report he “dictated”
following the surgery.
Q: [L]et me just ask you specifically: Because you’re being
sued in this matter with the allegation that you did not
perform any type of procedure of the stricture that [was]
located at the ileocolonic anastomosis; correct?
A: That’s what you’re suing me for, yes.
....
Q: Okay. Did you ever inspect that particular area during
your procedure?
A: Yes.
Q: Okay. And according to your report, what part of the report
indicates that you specifically examined the ileocolonic
anastomosis?
A: The abdomen was explored. As you and I talked about
earlier, when you do an exploration, you examine all the
structure [sic] we talked about.
....
Q: So what you meant by “the abdomen was explored,” is that
you explored anything and everything within the abdomen,
and that also happened to include the stricture at the
ileocolonic anastomosis?
A: I looked at everything that was diseased, sir, yes.
Q: Okay. And that includes the stricture at the ileocolonic
anastomosis?
A: That’s all the stricture—all the disease that was there, I
looked at and took care of.
The doctor explained that although his operative report did not state
that he examined the stricture at the ileocolonic anastomosis, the stricture
was encompassed in the “area of disease” mentioned in the report.
3
A: The area of disease that we saw, that I saw during the
procedure, is the area I took out.
Q: Okay. Doctor, the part that you took out, did it include the
ileocolonic anastomosis and the stricture that was located in
that area?
A: I took out all the areas of stricture that we could see.
....
A: I took out all the strictured areas.
Q: Is that a yes, then, to my question?
A: Everything that looked like disease, I took it out.
Q: Doctor, did you remove the stricture at the ileocolonic
anastomosis, yes or no?
A: I believe I did.
Q: You believe you did?
A: I believe I did. I took out all the disease.
Q: What makes you believe you did, as opposed to maybe you
didn’t? Where does this belief come from?
....
A: All the area that was diseased, I took out.
....
A: I removed all the disease we saw.
Q: Is the answer to my question yes?
A: I took out all the disease I saw.
Q: Doctor, is the answer to my question yes? Because I can
have [the court reporter] read it back two times or twelve
times, but I need an answer to the question.
A: I don’t have to have it repeated, and I’m trying to answer
the best I can.
4
Q: Doctor, I don’t want to know about all the disease that you
took out. I want to know specifically, because you would agree
with me that there was disease, there was [a] stricture at the
ileocolonic anastomosis, you don’t dispute that, do you?
....
A: There was—there was disease at the ileocolonic
anastomosis.
Q: And my question is: Did you remove that specific diseased
portion of her small bowel and large colon?
A: I believe I did.
Q: You believe you did.
....
Q: [T]he thing you’re getting sued upon in this case, is that
you didn’t remove this stricture at the ileocolonic
anastomosis, you claim that you did; correct?
A: Yes.
....
Q: Okay. Any particular reason why you would not note in
your surgical report your actual surgical removal of this
stricture?
....
A: Because I removed all of it—I removed all of it, and all the
disease in a particular area.
At a subsequent deposition, the doctor’s standard of care expert
testified the doctor did not remove any stricture at the ileocolonic
anastomosis. The doctor was “mistaken” at his deposition. Based on the
records, the expert testified the doctor examined the ileocolonic
anastomosis but, as part of his surgical decision-making process, did not
deem it to have a clinically significant stricture requiring removal. The
doctor’s damage and causation expert and the plaintiff’s expert also agreed
the doctor did not remove the stricture at the ileocolonic anastomosis.
The Trial
5
In opening statement, attorney Cousins stated the doctor would tell the
jury he did not remove the stricture at the ileocolonic anastomosis
“because he made a surgical decision that he removed all the diseased
areas that he saw and visualized” and “that was his medical judgment at
the time.” The plaintiff objected and argued the doctor’s new “medical
judgment” defense was a “surprise” and contrary to his deposition
testimony. The plaintiff requested “[i]n a sense like a motion in limine”
that the doctor be prohibited from introducing a new theory that he made
a judgment call not to remove the ileocolonic anastomosis stricture.
Attorney Cousins responded the doctor “said a lot of different things in
his deposition” because he “was being harangued to the point where I’m
convinced [he] would have said anything.” The parties were “splitting
hairs” because “everything is a judgment call” and the plaintiff never asked
him whether he exercised his judgment in making his decision during the
surgery. Attorney Cousins suggested that he would instruct the doctor
not to use the term “judgment call” in his testimony, but that the “clear
inference from [the deposition testimony] is if he didn’t think it was
diseased, he didn’t remove it.”
The trial court read through the doctor’s deposition testimony. The
following discussion took place.
Defense Counsel: There is no dispute that [the doctor] did
not remove the anastomosis.
Court: What about that portion that I have been looking at in
his deposition. . . .
Defense Counsel: Entering the fourth hour of the deposition
after being repeatedly questioned, repetitive questions from
plaintiff’s counsel, that’s what he said, Judge. But we know
that’s simply an inaccurate statement. He did not do it.
Court: Then do I have an errata on this?
Defense Counsel: There was no errata filed, no, sir. I can’t
now have him get on the stand, Judge, and say something
that the doctor knows simply to be inaccurate and factually
wrong.
Court: But there’s been no effort to fix the depo up to this
point.
6
Defense Counsel: There has not. But our expert clarified
that, so it’s certainly no surprise what the issue is going to be,
Judge.
The plaintiff explained that given the time and money expended in
preparing for the trial, the only appropriate remedy would be to strike the
doctor’s pleadings and have him pay attorney’s fees and costs including
expert witness fees because “the bell has been rung here and I don’t think
there is a way to unring that bell.” Plaintiff’s counsel explained:
[I]f we allow the doctor to take the stand and start changing
all of his testimony, the problem I have is I have got my expert
here ready to take the stand, and we’re not prepare[d] for that.
We assumed he told the truth. Now we found out it was just
a lie by the defense all along. And so I can’t fix that today in
terms of how do I now with this brand new testimony that is
going to go in 15 minutes, have my expert prepared to take
the stand after him and give testimony, I can’t fix that.
At attorney Cousins’ request, the trial court required the plaintiff to file
a written motion, ordered an evidentiary hearing, and suspended the trial.
The plaintiff then moved in writing to strike defendants’ pleadings, enter a
default, and impose sanctions for willful misconduct.
The Sanctions Hearing
At the evidentiary hearing, just before the doctor began to testify, the
trial court advised him of his Miranda rights. The doctor then testified
that the ileocolonic anastomosis did not appear to be clinically significant
at the time of his operation and that he did not testify as such during his
deposition. He further testified that it was not the first time he was offering
the testimony because: “I actually said it during my testimony during the
deposition. I kept saying that the small bowel was the diseased area and
that I evaluated the ileocolonic anastomosis.” He also testified that it was
his intention to testify at trial that he purposely left the ileocolonic
anastomosis that was strictured because it was not clinically significant
compared to the other areas he saw based on his medical judgment.
When asked why he denied the allegation that he did not remove the
culprit stricture in his answers and affirmative defenses, he testified that
he did not recall telling the plaintiff he had removed the stricture at the
ileocolonic anastomosis, but that “normally I would say that we took care
of the disease.” He testified “if it wasn’t significant, then it didn’t need to
come out.” Later, he conceded that his pre-op notes indicated the plaintiff
7
would require surgery to “remove the stricture at the ileocolonic
anastomosis.”
Regarding his deposition testimony, the doctor testified:
Q: Okay. And repeatedly you’ve testified that you did remove
the stricture at the ileocolonic anastomosis, did you not?
A: I also said multiple times beforehand that I took out the
disease process. I did not mention the ileocolonic
anastomosis until we had—had been asked so many times.
....
Q: [R]epeatedly you gave unequivocal answers that you had,
in fact, removed the stricture at the ileocolonic anastomosis;
is that correct?
A: I did answer that question. I did not intentionally want to
misrepresent or deceive anybody answering it that way. If
the—if your Honor would have been at the deposition, my
mindset starting off and continuing throughout the whole
deposition became more and more agitated. I am not used to
having depositions done by video. In fact, I’ve never had a
video deposition before. And between the deposition and the
arguments between both counsels, myself, my counsel, and
[plaintiff’s counsel], I became more and more agitated to the
point where I would actually answer any question and I would
say anything that anybody would want to hear me say.
The doctor also testified that the last time he saw his deposition was the
night before the trial. “[W]hen I looked at what was there, I was aghast. I
couldn’t believe what was coming out of my mouth.”
When asked whether his attorneys knew he had left in the stricture as
part of his judgment call, attorney Cousins objected on attorney-client
privilege grounds. The trial court asked why it wouldn’t fall under the
crime-fraud exception to the privilege, to which attorney Cousins
responded that the exception was inapplicable absent intent to defraud.
When plaintiff’s counsel began to question the doctor regarding his
interrogatory responses that were signed under penalty of perjury,
attorney Cousins advised him to invoke his Fifth Amendment privilege,
which he subsequently did for the remaining questions. Plaintiff’s counsel
then again asked whether he had conveyed the “truth of the matter” to
8
attorney Cousins. Again, attorney Cousins objected on grounds that it
involved attorney-client privilege. At that point, the trial court overruled
the objection “as an exception.”
At the conclusion of direct examination, attorney Cousins stated that
he would withhold any cross-examination and requested a continuance of
the hearing for the doctor to seek criminal counsel. The trial court had
the doctor step down. Plaintiff’s counsel then called attorney Cousins to
the stand. Attorney Cousins objected to taking the stand without criminal
counsel.
The trial court told attorney Cousins to present his case, to which the
doctor’s new counsel responded that she couldn’t put defense counsel on
the stand because although she was “fully prepared to put on counsel to
present their testimony, . . . I’m very concerned right now that there’s a
conflict with me presenting their testimony on behalf of the doctor who I
filed an appearance on behalf of. And I think I’m now in a conflict position
as well, bringing out testimony from them.”
Following another recess, the following discussion occurred.
Plaintiff’s Counsel: . . . [D]id you, defense counsel, at any
time prior to the start of this trial, advise plaintiff or plaintiff’s
counsel that [the doctor] himself was now stating and taking
a new position that he did not take the stricture out?
....
Attorney Cousins: [addressing the court] I don’t believe,
even when I learned of it, which was very shortly before the
trial, I—it’s work product, but I did not review the deposition
until very shortly before we started the case.
Court: Now, why no errata?
Attorney Cousins: Your Honor, I wasn’t present at the
deposition. I didn’t review the transcript until very shortly
before this trial proceeding started.
Court: Well, I’m assuming it’s an office practice for someone
to look at the transcript at some point, isn’t it, within the time
frame?
Attorney Cousins: You’re asking an office practice, your
[h]onor. I—it’s my understanding the transcript was
9
forwarded to the doctor, but I can speak hypothetically. . . . I
have no specific facts about why an errata wasn’t involved in
this case, your [h]onor, because I didn’t review it until very
literally shortly before the trial. But had I reviewed it—
okay?—had I reviewed it, I would not have filed an errata sheet
either, for two of the followings reasons—and this is
hypothetical. I didn’t review the transcript. I didn’t represent
the doctor at the deposition. Number one, to me it’s such an
obvious inaccuracy there would be no reason to alter or reflect
that because counsel knew at the time he asked the question
that he elicited an inaccurate response from the doctor. But
number two, it was my understanding of the case law that,
had an errata been filed, it simply would have subjected the
doctor to another session of this intolerable proceeding
conducted by [plaintiff’s counsel].
....
Plaintiff’s Counsel: . . . [T]he first time you personally
became aware of [the doctor’s] claim that he did, in fact,
remove the stricture at the ileocolonic anastomosis was within
a month of trial; is that correct?
Attorney Cousins: Less than a month.
When asked why he didn’t update the doctor’s response to interrogatory
six, attorney Cousins testified, “You have to look at Question No. 1 that
says in the response he says, ‘I saw and examined the anastomosis and I
treated it.’ I mean, to me that’s entirely consistent with what he did.” He
maintained the interrogatory responses were “true and correct and they’re
totally consistent with his testimony.”
Attorney Sankey testified that when he met with his experts, he realized
the doctor has made some misstatements in his deposition.
The Sanctions Order
The trial court entered an order partially granting the plaintiff’s motion
for sanctions. The order precluded the doctor and his experts from
claiming he did not remove the “culprit stricture” at the ileocolonic
anastomosis as a matter of medical judgment because it was not pled as
an affirmative defense. The court found the doctor “did not tell the truth”
during his deposition as to his “claim that he had removed the subject
stricture,” and by doing so was “successful in concealing other elements
10
of his defense,” namely, that he left the stricture in as a result of his
medical judgment.
The trial court found that both defense counsel, upon learning of the
“false testimony,” purposely did not bring the testimony 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.”
While the trial court found that defense counsel’s argument that plaintiff’s
counsel “should have known” of the doctor’s new testimony was not a
reasonable explanation, the trial court did not find there was a fraud on
the court requiring the striking of pleadings. There was an “abundance”
of evidence that the stricture had not been removed that mitigated the false
testimony.
Nevertheless, the trial court awarded attorney’s fees and costs against
the doctor and defense counsel jointly and severally. The order provided
that “sanctions shall include the time that [the plaintiff] and her counsel
have expended in the two weeks prior to trial in preparing for trial, the
aborted trial, and all time expended in connection with [the plaintiff’s]
motion as well as costs in connection therewith.” After an evidentiary
hearing, the trial court awarded $271,487.82.
The plaintiff settled with the doctor and his P.A. The medical
malpractice and sanction claims against the doctor and his P.A. were then
dismissed with prejudice, leaving the sanctions order pending against
defense counsel only. From this order both defense counsel now appeal.
The Appeal
On appeal, both attorneys argue the trial court erred in imposing
sanctions for alleged fraudulent or litigation misconduct because they did
not engage in such conduct. Even if they had, they argue the trial court’s
order preventing the defense from introducing testimony that the doctor’s
surgical decision was based on his medical judgment remedied any
prejudice. They also argue the amount of the sanction was excessive.
The plaintiff responds the trial court did not err in sanctioning defense
counsel for engaging in bad faith litigation. The plaintiff suggests the
award reflects fees and costs incurred due to their conduct. The plaintiff
also argues public policy supports the award.
We review an order imposing “sanctions for bad faith litigation conduct
. . . [for] an abuse of discretion.” Bennett v. Berges, 50 So. 3d 1154, 1159
(Fla. 4th DCA 2010).
11
“[A] trial court possesses the inherent authority to impose attorneys’
fees against an attorney for bad faith conduct.” Moakley v. Smallwood,
826 So. 2d 221, 226 (Fla. 2002). This authority, however, is limited. Id.
at 224.
[T]he trial court’s exercise of the inherent authority to assess
attorneys’ fees against an attorney must be based upon an
express finding of bad faith conduct and must be supported
by detailed factual findings describing the specific acts of bad
faith conduct that resulted in the unnecessary incurrence of
attorneys’ fees. [The] finding of bad faith conduct must be
predicated on a high degree of specificity in the factual
findings.
Id. at 227 (emphasis added). Moakley and its progeny govern this appeal
and mandate a reversal.
Defense counsel argue they did not engage in fraud or litigation
misconduct because: (1) the doctor’s deposition testimony, answer, and
interrogatory responses were not perjurious; (2) there was no evidence that
defense counsel “suborned” the false deposition testimony and
interrogatory response; (3) defense counsel were not required to file an
errata sheet or update the discovery responses; and (4) there was no
prejudice to the plaintiff.
1. The Doctor’s Deposition Testimony, Answer, and Response
to Interrogatory #6 Fail to Support the Sanctions Order.
“[P]erjury is defined as the willful giving of false testimony under lawful
oath on a material matter in a judicial proceeding.” Adams v. Murphy, 394
So. 2d 411, 413 (Fla. 1981). “[S]tatements alleged to be perjurious must
be of ‘empirical fact’ and not of opinion, belief or perception.” Cohen v.
State, 985 So. 2d 1207, 1209 (Fla. 3d DCA 2008).
a. The Doctor’s Deposition Testimony.
At his deposition, the doctor testified he looked at the plaintiff’s entire
abdomen, including the subject stricture, and removed the diseased area.
There is nothing in this testimony that reveals whether the doctor removed
the stricture. It is neither inaccurate nor perjurious.
And, to the extent he later testified in deposition that he believed he
had removed the stricture, his testimony was based on his belief. “[A]n
12
expression of belief” cannot constitute perjury because it is not a
statement of empirical fact. See id. at 1208–09 (reversing perjury
conviction where defendant stated his belief). While there was inaccurate
testimony, the record does not support a finding that the doctor
intentionally testified untruthfully.
The doctrines of estoppel and waiver also weigh against the sanctions
order. Plaintiff’s counsel became aware of the inaccuracy of some of the
doctor’s deposition testimony either before or at the same time defense
attorney Sankey became aware—at the defense experts’ deposition. And,
plaintiff’s counsel conceded at the evidentiary hearing that he thought the
doctor was telling the truth as to what he believed but was mistaken.
Plaintiff’s counsel is therefore estopped from seeking sanctions for fraud
when he acknowledged none existed in the doctor’s deposition testimony.
See In re Adoption of D.P.P., 158 So. 3d 633, 638–39 (Fla. 5th DCA 2014)
(“[T]he doctrine of estoppel prevents a person from unfairly asserting
inconsistent positions.”).
Once he became aware of the inaccuracy of the doctor’s deposition
testimony, plaintiff’s counsel chose to do nothing. That failure constitutes
a waiver. A party waives a fraud claim by failing to change its position
after learning of the fraud. See Picture It Sold Photography, LLC v.
Bunkelman, 287 So. 3d 699, 703–04 (Fla. 4th DCA 2020); Matusick v.
DiSalvo, 82 So. 3d 1045, 1046 (Fla. 4th DCA 2011).
The record also fails to support any finding that defense counsel knew
the doctor’s deposition testimony was inaccurate at the time it was taken.
Attorney Sankey learned of it at the subsequent deposition of the defense
experts. Attorney Cousins learned of it just prior to trial. There simply
was no evidence supporting any kind of intentional wrongdoing or intent
to defraud on the part of defense counsel when the doctor was deposed.
Contrary to the trial court’s determination, defense counsel had no
obligation to file an errata sheet to the doctor’s deposition. “Testimony
taken during a deposition is to be completely that of the deponent, not a
version of the testimony which has been edited or glossed by the
deponent’s lawyer.” Ctr. for Individual Rights v. Chevaldina, 16-20905-
CIV, 2018 WL 4777165, at *2 (S.D. Fla. June 22, 2018).
Here, the doctor did not waive the reading of his deposition. The
deposition was forwarded to the doctor for his review, but there is no
indication he ever signed off on the deposition. Pursuant to Florida Rule
of Civil Procedure 1.310(e), the deposed witness alone can make changes
13
to the deposition transcript. The doctor testified he reviewed the
deposition the night before trial.
Defense counsel had no duty to file an errata sheet. In fact, they would
have risked sanctioning had they done so. See Norelus v. Denny’s, Inc.,
628 F.3d 1270, 1281 (11th Cir. 2010) (“The [deponent’s attorney’s]
submission of the novella-length errata sheet making a slew of material
changes to their client’s deposition testimony was improper.”). 1
In short, the doctor’s deposition testimony neither constituted a fraud
on the court nor litigation misconduct. 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.
b. The Doctor’s Response to Interrogatory #6.
The plaintiff also argued the doctor and defense counsel engaged in bad
faith misconduct and/or fraud in the doctor’s response to Interrogatory
#6. But, the response to Interrogatory #6 similarly fails to show any bad
faith misconduct or fraud. In fact, defense counsel’s actions were entirely
proper and based on their understanding of the facts and the law.
Prior to the doctor’s deposition, the plaintiff propounded, and the doctor
responded to, Interrogatory #6.
6. Did you perform the surgery on the [p]laintiff, specifically
treatment of the stricture at the ileocolonic anastomosis,
during the surgery on or about January 14, 2009? If so,
please describe specifically any and all evidence of this
treatment. If not, why not?
ANSWER: The [p]laintiff’s surgery was performed on January
14, 2008, not 2009. Yes, the stricture at the ileocolonic
anastomosis was treated during that procedure. [The doctor]
1Neither can the trial court’s findings against defense counsel be supported by
an adverse inference arising from the doctor’s invocation of his Fifth Amendment
privilege against self-incrimination at the evidentiary hearing. Assuming an
adverse inference could arise, it applied only to the party invoking the privilege
and not his legal counsel. See Vasquez v. State, 777 So. 2d 1200, 1203 (Fla. 3d
DCA 2001).
14
recalls treating that area. In addition, three (3) segments of
small intestine were submitted for pathologic review.
Attorney Sankey testified that he “more likely than not” assisted the
doctor with the interrogatory answers. Attorney Sankey testified that he
did not believe the answer to Interrogatory #6 was false in any way. He
had heard in a myriad of other cases that examination of a body part
constitutes “treatment” and understood that the doctor examined the
ileocolonic anastomosis during the surgical procedure.
Attorney Cousins did not recall assisting the doctor in responding to
the interrogatories. He testified the doctor’s response to Interrogatory #6
was consistent with his deposition testimony. It was his understanding
that an “examination” constitutes “treatment.”
Because defense counsel reasonably believed the interrogatory answer
was true, they cannot have acted in bad faith or fraudulently. See Vieira
v. Doe, 813 So. 2d 1030, 1031–32 (Fla. 4th DCA 2002) (reversing sanction
where no clear showing of fraud given interrogatory questions were vague
and imprecise).
Plaintiff and the trial court’s order rely in part on the premise that
defense counsel was obliged to update the interrogatory response once
they learned the doctor’s deposition testimony was inaccurate. But there
is no duty to update interrogatory responses. See Dos Santos v. Carlson,
806 So. 2d 539, 540 (Fla. 3d DCA 2002) (reversing sanction based on trial
court’s “legally incorrect” holding that “defendant had ‘an obligation to
update any discovery . . . a continuing obligation to provide it’”); see also
Binger v. King Pest Control, 401 So. 2d 1310, 1312 n.4 (Fla. 1981) (“There
is no continuing duty of disclosure under Florida’s Rules of Civil Procedure
. . . .”); Fla. R. Civ. P. 1.280(f) (“A party who has responded to a request for
discovery with a response that was complete when made is under no duty
to supplement the response to include information thereafter acquired.”).
On the other hand, plaintiff’s counsel had the ability to request updated
responses after learning of the inaccuracy of some of the doctor’s
deposition testimony. Counsel could have specifically asked whether a
stricture at the ileocolonic anastomosis was “removed.” See Anthony v.
Schmitt, 557 So. 2d 656, 660 (Fla. 2d DCA 1990) (“[T]he Florida Rules of
Civil Procedure never require a party to update answers to interrogatories
after material changes render them inaccurate. . . . Thus, it is common
for litigants to request updated answers concerning year-old
interrogatories.”). Defense counsel’s understanding of his legal and ethical
obligations was not only reasonable but entirely correct.
15
i. The Trial Court Misapplied the Rules Regulating the
Florida Bar.
And lastly, the trial court erred in interpreting the Rules Regulating the
Florida Bar. See Ferere v. Shure, 65 So. 3d 1141, 1144–45 (Fla. 4th DCA
2011) (reversing order granting sanctions where trial court misinterpreted
law). Rule 4-3.3(a)(2) provides: “A lawyer shall not knowingly: (2) fail to
disclose a material fact to a tribunal when disclosure is necessary to avoid
assisting a criminal or fraudulent act by the client.”
This rule does not support the sanctions order. First, the record
establishes defense counsel’s intent to have the doctor testify truthfully at
trial. Second, Rule 4-3.3 applies only where an attorney has actual
knowledge that evidence to be offered is false. By advising the jury that
the doctor would testify he did not remove the stricture at the ileocolonic
anastomosis, defense counsel complied with his ethical obligation. See
Rule 4-3.3(a)(4) (“A lawyer shall not knowingly . . . offer evidence that the
lawyer knows to be false.”).
ii. The Trial Court Misapplied a Florida Bar Ethics
Opinion.
Similarly, Florida Bar Ethics Opinion 75-19 (Mar. 15, 1977), aff’d,
Professional Ethics Committee (June 18, 1998), relied upon by the trial
court, does not support the sanctions order. 2 Unlike the factual scenario
2 Florida Bar Ethics Opinion 75–19 provides:
A lawyer inquires as to whether he has a duty to disclose perjury
committed by his client in a divorce proceeding deposition wherein
the client lied as to certain assets. The lawyer was aware of the true
facts during the deposition but was not aware that the client had
deliberately lied until after the deposition when the lawyer, in
private conversation with the client, asked whether the client knew
the true facts and the client responded that he did and that he had
deliberately lied to conceal assets. In the inquiry, the lawyer
recognizes his duty to withdraw from the employment, and the
Committee unanimously agrees.
DR 7-102(B)(1) provides that “A lawyer who receives information
clearly establishing that . . . his client has, in the course of the
representation, perpetrated a fraud upon a person or tribunal shall
promptly call upon his client to rectify the same, and if his client
refuses or is unable to do so, he shall reveal the fraud to the affected
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in that opinion, at no time prior to the evidentiary hearing did defense
counsel have reason to believe the doctor knew at the time of his deposition
that he had not removed the stricture at the ileocolonic anastomosis.
There is no evidence, let alone clear and convincing evidence, that
defense counsel engaged in any fraud or willful misconduct regarding the
interrogatory response. Because defense counsel reasonably believed the
interrogatory answer was true, they cannot be deemed to have acted in
bad faith or fraudulently. See Vieira, 813 So. 2d at 1031–32.
In short, the trial court abused its discretion in entering the sanctions
order.
c. The Doctor’s Answer to the Complaint and Affirmative
Defenses.
The plaintiff and trial court also took issue with the defendants’ denial
or “denial as phrased” of the plaintiff’s negligence allegations in
paragraphs 9, 10, and 14 of the complaint. However, the defendants
denied those paragraphs because the doctor maintained he was not
negligent in performing the surgery. The doctor believed the source of
plaintiff’s symptoms were the multiple strictures in the small bowel and
not the stricture located at the ileocolonic anastomosis. This is a position
the doctor was entitled to maintain. He was not obligated to admit
negligence if he believed otherwise. These denials cannot serve as a basis
of a sanctions order.
2. Medical Judgment is Not an Affirmative Defense.
The trial court concluded “medical judgment” was an affirmative
defense that the defendants waived by failing to plead it in their answer.
Here too, the trial court erred.
person or tribunal.” The majority of the Committee feels that a
fraud has been perpetrated upon the court and the opposing party
by such perjury in a deposition and that further fraud would be
perpetrated by permitting use in litigation of the perjured
deposition, such as the one referred to in the inquiry, or by later
testimony in like fashion before the court if the deposition itself
should be used in evidence.
Fla. Bar Pro. Ethics Comm’n., Formal Op. 75-19 at *1.
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A medical negligence claim is, in essence, a claim that a medical
provider failed to properly use medical judgment. See Rockledge HMA, LLC
v. Lawley, 310 So. 3d 112, 116 (Fla. 5th DCA 2020) (holding plaintiffs’
action sounded in medical negligence because plaintiffs “[would] be
required to show that Dr. Hill improperly exercised medical judgment”);
see also Gouveia v. Phillips, 823 So. 2d 215, 218 (Fla. 4th DCA 2002).
Unlike a denial of allegations, an affirmative defense admits the
allegations but seeks to avoid liability by operation of a legal excuse which
the defendant has the burden of pleading and proving. See State Farm
Mut. Auto. Ins. Co. v. Curran, 135 So. 3d 1071, 1079 (Fla. 2014). Here, the
doctor did not admit negligence, and, therefore, “medical judgment” could
not have been an affirmative defense. See Mancinelli v. Davis, 217 So. 3d
1034, 1038 (Fla. 4th DCA 2017). The “medical judgment” defense in this
case involved a factual dispute, not a legal avoidance of admitted
allegations.
In short, the trial court erroneously interpreted the law on “medical
judgment”.
3. The Monetary Sanction Was Excessive.
We reverse the sanctions order for two additional reasons. First, the
order preventing the doctor and defense experts from discussing “medical
judgment”, albeit in error, more than ameliorated any perceived prejudice
to the plaintiff. See Perez v. Safepoint Ins. Co., 299 So. 3d 1087, 1090–91
(Fla. 3d DCA 2019) (reversing dismissal sanction for fraud on trial court
where affidavit allegedly misrepresenting core facts could have been
stricken as lesser sanction). And second, the amount awarded was
excessive.
The trial court’s sanction order precluded the doctor and his experts
from using a “medical judgment” defense. As indicated above, the
exclusion of the doctor’s truthful testimony was improper. See Fla.
Peninsula Ins. Co. v. Newlin, 273 So. 3d 1172, 1179–80 (Fla. 2d DCA 2019)
(Lucas, J., concurring) (“[W]e have never applied Binger’s factors as a
substantive test for the admissibility of evidence or for motions for new
trial; nor have we ever held that Binger must be applied beyond the
contexts of undisclosed witnesses or undisclosed expert testimony.”).
Even so, the limitation on testimony remedied any perceived prejudice.
Courts are not empowered to award attorney’s fees simply because a
movant succeeds in having testimony excluded. “[F]actual
inconsistencies, even false statements are well managed through the use
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of impeachment and traditional discovery sanctions.” Gilbert v. Eckerd
Corp. of Fla., Inc., 34 So. 3d 773, 776 (Fla. 4th DCA 2010) (quoting Ruiz v.
City of Orlando, 859 So. 2d 574, 576 (Fla. 5th DCA 2003)).
We also reverse the sanctions order because of the excessive amount
awarded. This is because the award neither directly related to the alleged
sanctionable conduct nor reflected a reasonable number of hours
expended.
“[T]he amount of the award of attorneys’ fees must be directly related
to the attorneys’ fees and costs that the opposing party has incurred as a
result of the specific bad faith conduct of the attorney.” Moakley, 826 So.
2d at 227. Where the orders and record fail to show how the alleged
misconduct directly caused the fees awarded, it must be reversed. See
Hicks v. Hicks, 284 So. 3d 576, 579 (Fla. 4th DCA 2019).
The $271,487.82 award encompassed three time periods: the time
plaintiff and her counsel expended in: (1) the two weeks preparing for trial;
(2) the aborted trial time; and (3) time expended in connection with the
sanctions motion.
Regarding the pretrial and aborted trial time periods, the trial court
specifically concluded that “[b]oth sides must now prepare for another trial
which should have already been completed.” This is incorrect. Because
the plaintiff settled with the doctor, no new trial was required. And even
if the case had not settled, plaintiff’s counsel would not have had to
prepare differently based on the order limiting the defense testimony. The
“fraud on the court” sanction motion and evidentiary hearing were
unnecessary after the court prohibited the use of the “medical judgment”
defense.
And, the $271,487.82 award was based on an unreasonable and
excessive amount of hours. See Hoegh v. Estate of Johnson, 985 So. 2d
1185, 1186–87 (Fla. 5th DCA 2008). The trial court based its award on
867.60 hours divided between plaintiff’s three attorneys, law clerks,
paralegals, and the fee expert. The hours submitted by plaintiff’s counsel
were insufficiently detailed and contained improper “block billing” and
duplicative time. See Moore v. Kelso-Moore, 152 So. 3d 681, 682 (Fla. 4th
DCA 2014). In fact, one attorney submitted an amended affidavit reducing
excessive hours in an alleged effort to be “decent.” We conclude the hours
and fee award were excessive.
As Judge Carnes stated in Norelus, “[n]o one’s memory is perfect.
People forget things or get confused, and anyone can make an innocent
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misstatement or two.” 628 F.3d at 1273. This is just one of those cases.
But it was not a case of bad faith or litigation misconduct on the part of
defense counsel. For the foregoing reasons we reverse the sanctions order.
Reversed and remanded.
CIKLIN and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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