DONALD DIAMOND, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KAY D. DIAMOND, DECEASED, PETITIONER,
v.
WHALEY, CHAPMAN & HANNAH, M.D.'S, P.A., AND SAMUEL C. HANNAH, RESPONDENTS
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A personal representative of a deceased medical malpractice plaintiff sought common law certiorari to challenge a pretrial order requiring him to try his survival and wrongful death claims sequentially rather than simultaneously. The court denied the writ, holding that the trial court properly exercised discretion to bifurcate factually inconsistent theories, and that any harmful error would be remediable on post-judgment appeal.
The court denied certiorari, holding that the trial court's order does not constitute an election of remedies because it does not prevent plaintiff from pursuing both remedies, only requires sequential trial. The court reasoned the order is a proper exercise of discretion under Florida Rule of Civil Procedure 1.270(b) to bifurcate inconsistent damage theories, and that any harmful error would be remediable on post-judgment appeal, making certiorari an inappropriate remedy.
[1] Common law certiorari is an extraordinary remedy that is not available when an adequate post-judgment appellate remedy exists.
[2] A trial court has the discretion to order separate trials of inconsistent legal theories pursuant to Florida Rule of Civil Procedure 1.270(b).
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The trial court's order does not prevent the plaintiff from pursuing both remedies. See Barbe v. Villeneuve, 505 So.2d 1331 (Fla.1987). The plaintiff's theories are factually inconsistent and ultimately he can recover, at most, upon one factual scenario.”
Establishes that bifurcating inconsistent theories is not an election of remedies and is within the trial court's discretion.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMrs. Diamond filed a medical malpractice action against physicians for misdiagnosis of a cancerous growth. After her death, her husband became persona…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Bifurcation Of Proceedings cases and more on FLexlaw
ALTENBERND, Judge.
Mr. Diamond, the plaintiff below, seeks relief by common law certiorari from a pretrial order which requires him to try one of his legal theories prior to and separate from his other legal theory. We deny the writ because the plaintiff has an adequate post-judgment appellate remedy if the pretrial order ultimately results in any harmful error. Initially, Mrs. Diamond and her husband filed a medical malpractice claim against the defendant physicians alleging that the physicians had treated Mrs. Diamond and had misdiagnosed a cancerous growth. After the lawsuit was filed, Mrs. Diamond died. Her husband was appointed personal representative of her estate. He pursued the survival action under section 46.021, Florida Statutes (1987).
He also filed an amended complaint which added a claim, in the alternative, for wrongful death.
Thus, the plaintiff is alleging that Mrs. Diamond either sustained personal injuries due to the misdiagnosis and that her death was unrelated to the misdiagnosis, or that the alleged misdiagnosis proximately caused her death.
At the pretrial, the trial court entered an order requiring the plaintiff to elect an initial trial on either the survival action or the wrongful death action.
The trial court’s order does not require the plaintiff to choose one theory to the exclusion of the other theory. The plaintiff is merely required to try one theory before the other. The plaintiff argues that the trial court’s order forces a premature election of remedies. A close analysis of the issue, however, establishes that the trial court’s order does not involve an election of remedies.
The trial court’s order does not prevent the plaintiff from pursuing both remedies. See Barbe v. Villeneuve, 505 So. 2d 1331 (Fla.1987). The plaintiff’s theories are factually inconsistent and ultimately he can recover, at most, upon one factual scenario.
The trial court has merely exercised its discretion pursuant to Florida Rule of Civil Procedure 1.270(b) to require the plaintiff to try the inconsistent theories of damage separately.
The plaintiff also argues that the pretrial order may result in inconsistent verdicts by two separate juries. From the record presented to us, the risk of inconsistent verdicts is a legitimate concern. Nevertheless, defective verdicts do not appear inevitable under the trial court’s procedure. If a verdict form in the first trial presented special interrogatories which separated the liability issues from the issues of causation and damages, specific issues would be established as the law of the case in the first trial. Thus, it appears possible that all issues could be successfully tried in the bifurcated proceedings without inconsistency.
Even if the plaintiff’s arguments prove to be correct, they do not establish an error which is irremediable by post-judgment appeal. Thus, the plaintiff has not established a sufficient basis to invoke the extraordinary remedy of common law certiorari. Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla.1987).
Petition for writ of certiorari denied.
DANAHY, A.C.J., and PATTERSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Microclimate Sales Co., Inc. v. Doherty, 731 So. 2d 856 (Fla. 5th DCA 1999)…la. 3d DCA 1975); Sail v. Luxenberg, 313 So. 2d 775, 776 (Fla. 4th DCA 1975). Further, bifurcation is generally proper absent a specific threat of inconsistent verdicts or prejudice to a party. See, e.g., Diamond v. Whaley, Chapman & Hannah, M.D.’s, 550 So. 2d 54 (Fla. 2d DCA 1989)(severance of issues proper where inconsistent verdicts “do not appear inevitable”); Luxenberg, 313 So. 2d at 776 (abuse of discretion to separate trials where issues “entwined and intermingled”). We conclude that the trial court…
-
In re Est. OF Beulah K. Trollinger. Betty J. Savoretti v. MHC/CSI Fla., Inc., 9 So. 3d 667 (Fla. 2d DCA 2009)…cannot be quashed at this time. If the trial court’s order results in prejudice to the plaintiff prior to the entry of an adverse final order, then that error can be corrected on direct appeal. See Diamond, v. Whaley, Chapman & Hannah, M.D.’s, P.A., 550 So. 2d 54 (Fla. 2d DCA 1989). Beulah K. Trollinger was a resident of a nursing home with which the various defendants had some connection. She resided at the home between January 2003 and May 2005. She died in July 2005. Her personal representative has file…
Authorities Cited
- Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987)
- Barbe v. Villeneuve, 505 So. 2d 1331 (Fla. 1987)