Richard A. Jarolem Prevails on Appeal Protecting Expert Witnesses from Abusive Discovery Tactics in Florida

The 4th District Court of Appeals in Florida holds that restrictions on expert discovery extend to the business of the expert and cautions trial attorneys and trial courts to not accept novel discovery requests that are contrary to those restrictions.  

On June 12, 2019, the Fourth District Court of Appeals in Florida issued an opinion in Orthopaedic Center of South Florida v. Sode, on a matter of first impression: the extent to which the financial discovery limitations applicable to an expert apply to the business entity with which the expert is affiliated. Traub Lieberman Straus & Shrewsbury Partner Richard A. Jarolem represented Orthopedic Center of South Florida (“Petitioner”), a non-party in the action, in petitioning for a writ of certiorari, seeking to quash a discovery order overruling the Petitioner’s objections to a proposed subpoena duces tecum.

Michael Sode (“Respondent”) filed a complaint in the Circuit Court of the Seventeenth Judicial Circuit against the defendant for alleged injuries he suffered in a bicycle accident. Respondent served an extensive subpoena duces tecum on Petitioner; the business entity under which the doctor who performed the compulsory medical exam runs his practice.

Petitioner objected to the discovery requests and moved for a protective order. At the hearing, Petitioner conceded that Respondent was entitled to some discovery pursuant to Rule 1.280(b) (5), Fla. R. Civ. P., Elkins v. Syken, 672 So.2d 517 (Fla. 1996) and Allstate Insurance Co. v. Boecher, 733 So.2d 993 (Fla. 1999).

At the hearing on its objections, Petitioner contended that most of what Respondent sought was not proper discovery from the examining doctor, who was an expert under Rule 1.280(b)(5)(A)(iii), Fla. R. Civ. P. Petitioner argued, therefore, that Respondent could not circumvent the rule, Elkins v. Syken, 672 So.2d 517 (Fla. 1996) and Allstate Insurance Co. v. Boecher, 733 So.2d 993 (Fla. 1999), by requesting the otherwise impermissible discovery from the non-party corporate entity affiliated with the examining doctor. Respondent argued that the limits of the Rule, Elkins and Boecher do not apply to Petitioner because it is a corporation, and it is not afforded the protections of an expert.

The trial court sustained some objections and overruled others. The trial court did not address Petitioner’s objections that the discovery exceeded Rule 1.280(b)(5), or that such discovery requests were burdensome and invasive on a non-party. The trial court did not make findings of “unusual or compelling circumstances,” as required pursuant to Rule 1.280(b)(5)(A), Fla. R. Civ. P.,  and compelled the discovery to be used “for reference purposes only” by the deponent. .

On appeal, Petitioner contended the order compelling it to produce certain documents for “reference purposes only” at deposition was beyond the scope of permissible discovery under Rule 1.280(b)(5), Fla. R. Civ. P.,  and Elkins. Respondent argued that the limits of Elkins and the rule do not apply to Petitioner because it is a corporation, and is not afforded the protections of an expert

The appellate court granted the petition, rejected Respondent’s argument, and held that: (1) the protections from invasive discovery afforded to individual experts apply equally to the business entity with which the expert is affiliated; (2) Respondent used an improper discovery methodology; and (3) the order granted impermissible discovery under the Rule, Elkins and Boecher. The appellate court in granting the petition specifically stated “We caution trial counsel from employing, and trial courts from approving, novel discovery methods which exceed the limits of authorized discovery”.

The decision is Orthopedic Center of South Florida v. Sode, No. 4D18-3478 (Fla. 4th DCA June 12, 2019).

Traub Lieberman Partners with Aspen Re to Publish White Paper on Impact of Climate Change on the (Re)insurance Market

Traub Lieberman Straus & Shrewsberry LLP Senior Counsel Adam D. Krauss has just published a new white paper in conjunction with Aspen Re on climate change and its impact on the (re)insurance market.

In the piece, titled “Climate Change and the (Re)insurance Implications,” Krauss takes a comprehensive look at the issues surrounding climate change, including the science, data, litigation, cost and examples of international and national action and insurance implications.

The costs of climate change are increasing and are substantial. 2017 was the costliest year on record for natural catastrophic events, with $344 billion in global economic loss, of which 97% was due to weather-related events. Insured loss estimates from natural catastrophes totaled $140 billion in 2017. While the loss estimates in 2018 improved somewhat to $80 billion, those losses still remained significantly higher than the long-term average.

This dramatic shift to higher losses has implications for the (re)insurance industry, especially those transacting commercial general liability, D&O and property business. Krauss has taken the time to closely examine those implications, while also taking a look at how alternative capital is playing a more prominent role in risk management

“The issue of Climate Change is increasingly permeating virtually every topic of discussion and we do not believe the concern is going to dissipate anytime soon,” said Krauss, a Senior Counsel in the firm’s New York office. “Our goal was to undertake a comprehensive examination of Climate Change, with particular focus on the downstream consequences to the insurance industry. Accordingly, we believe this paper is unique and we trust it will provide a valuable resource for all readers seeking to command an understanding of this important, active and evolving subject.”

The white paper notes that the need for this analysis has never been greater, since climate change is not only about the liability side of the balance sheet. (Re)insurers, as investors, need to appraise existing investment strategy including fossil fuel and renewable energy companies to help mitigate the projected impact of climate change.

“We look forward to continuing this critical dialogue,” added Krauss, “ and welcome the opportunity to assist the insurance industry in all matters of risk surrounding Climate Change.”

To learn more about “Climate Change and the (Re)insurance Implications,” download the full white paper today at:

https://tlsslaw.com/files/climate_change_white_paper_2019.pdf

 

About Traub Lieberman:

Traub Lieberman Straus & Shrewsberry LLP has achieved a national reputation for excellence in legal representation. Our philosophy is to provide quality legal representation in an expeditious and efficient manner. Our emphasis on client service, as well as our reputation in the legal community, has served our clients and the firm well. Traub Lieberman has been recognized by many, including Martindale-Hubbell, for outstanding legal ability and ethical standards.

Brian Bassett and Phil Brandt Prevail On Appeal In Uninsured Motorist Coverage Dispute

On Friday, May 24, 2019, the Illinois Appellate Court, First District, affirmed a summary judgment ruling in favor of an insurance carrier that a police officer injured during a traffic stop was not “using” his police cruiser for liability coverage purposes, nor was he “occupying” the vehicle for uninsured motorist coverage. Traub Lieberman Straus & Shrewsbury Partner Brian Bassett represented the carrier in the circuit court and was assisted by associate Philip Brandt in the appellate court.

The plaintiff, a police officer for the City of Zion, filed a lawsuit against the carrier, which had issued a business auto policy to the municipality. During a traffic stop, the plaintiff parked his police cruiser behind another police cruiser at the scene in a manner to protect other officers already engaged in the traffic stop. The plaintiff exited his cruiser, passed the cruiser parked in front of him, and stood behind the stopped vehicle to serve as a cover officer. There, he noticed through the back window the suspect driver beginning to place the vehicle in gear. He ran toward the driver’s side of the stopped vehicle to pull the officer questioning the suspect driver out of the way. The driver struck the plaintiff as he drove off. When the Zion police apprehended the driver, they discovered the driver did not have insurance covering the vehicle. The plaintiff sought to recover under the carrier’s uninsured motorist provision, but was denied coverage because he was not “occupying” the police cruiser at the time he was injured as required to qualify as an insured under that provision.

The plaintiff argued, in part, that he qualified as a “user” of the police cruiser because he was “using” the police cruiser during the traffic stop to create a safety bubble or zone to shield him and others at the scene from both potential cars approaching from behind and also potential gunfire. The appellate court rejected this argument explaining that “use” of a motor vehicle for liability coverage purposes must be “rationally connected to the purpose of providing transportation or satisfying some other related need of the user.” The appellate court disagreed with plaintiff that using the cruiser as a shield was not a use connected to transportation or a related need.

The appellate court also rejected plaintiff’s argument that he was “occupying” the police cruiser during the traffic stop. The court explained that while it was questionable that the police officer had a “nexus” to the cruiser, he was not in “virtual contact” with the cruiser. In concluding there was no virtual contact, the appellate court considered that the plaintiff was 20-25 feet away from his cruiser at the time of his injuries and was out of the vehicle for approximately 30 seconds. As the plaintiff was unable to establish at least the “virtual contact” requirement to show he was “occupying” the police cruiser for uninsured motorist coverage purposes, the appellate court held that the circuit court properly granted summary judgment in favor of the carrier.

The decision is Arrington v. Certain Underwriters At Lloyds, London, Subscribing to Policy No.: BGA 300036-02, 2019 IL App (1st) 182345-U.

Traub Lieberman Attorneys Featured in Florida Super Lawyers

Traub Lieberman is pleased to announce that three of its attorneys have been named by the Florida edition of Super Lawyers among the top attorneys in the state for 2019. The list includes two attorneys recognized as Super Lawyers and one as a Rising Star.

Every year, Super Lawyers Magazine selects attorneys from firms of all sizes nationwide and more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. This selection process includes independent research, peer nominations, and peer evaluations

The following Traub Lieberman attorneys are named as 2019 Florida Super Lawyers and Rising Stars:

Super Lawyers
Michael K. Kiernan (FL)
Scot E. Samis (FL)

Rising Stars
Burks A. Smith, III (FL)

To learn more about all of the individuals featured in the 2019 Florida Super Lawyers, please visit:

https://attorneys.superlawyers.com/florida/

Summary Judgment for New Jersey Snow Removal Contractor in Personal Injury Case

Partner Gregory S. Pennington and associate Jessica L. Lentini, of the firm’s New Jersey office, obtained summary judgment in favor of our client, a snow removal contractor. The case involved personal injury claims by a plaintiff who slipped and fell in the parking lot of a condominium complex. Plaintiff filed suit against our client and the condominium complex, and the condominium complex filed cross-claims against our client. We were granted summary judgment on the grounds that our client did not breach its contractual duty according to the terms of the snow removal contract. We obtained a dismissal of the plaintiff’s complaint and all cross-claims filed against our client by the condominium complex.

Traub Lieberman Attorneys Recognized in 2019 Edition of Who’s Who Legal

Traub Lieberman attorneys Richard K. Traub and Richard J. Bortnick have been recognized in Who’s Who Legal Insurance & Reinsurance: Lawyers.

Published by London-based Law Business Research Limited, Who’s Who Legal recognizes the premier legal practitioners in multiple areas of business law. Start in 1996, Who’s Who Legal has recognized over 24,000 private practice lawyers and 2,500 consulting experts from over 150 national jurisdictions across the globe. 

Traub is a founder and co-managing partner of Traub Lieberman who works in a wide array of fields, including construction, pharmaceutical, product manufacturing, technology, insurance and reinsurance. Bortnick is a Partner in the firm’s New Jersey office who counsels clients on cyber and technology risks, exposures and best practices, cyber breach response management and interaction with regulators. He also handles matters involving directors’ and officers’ liability, professional liability, insurance coverage, and commercial litigation matters.

To read more about this recognition, please click here.

About Traub Lieberman:

Traub Lieberman Straus & Shrewsberry LLP has achieved a national reputation for excellence in legal representation. Our philosophy is to provide quality legal representation in an expeditious and efficient manner. Our emphasis on client service, as well as our reputation in the legal community, has served our clients and the firm well. Traub Lieberman has been recognized by many, including Martindale-Hubbell, for outstanding legal ability and ethical standards.

Brian Bassett and Julie Klein Author New Article on Economic Losses for In-House Defense Quarterly

TLSS partner Brian Bassett and associate Julie Klein have just authored a new article for the Spring 2019 issue of In-House Defense Quarterly.

The article, titled “Where Do We Draw the Line? Liability Coverage for Economic Losses” takes a closer look at commercial general liability (CGL) policies. Coverage A of CGL policies generally do not cover economic losses suffered without some form of property damage or bodily injury. Loss of use of tangible property, however, can also result in economic losses that fit within a CGL policy’s coverage. Bassett and Klein take a closer look at how to identify the boundaries of coverage in a CGL policy by identifying not only the extent of economic losses, but the losses’ root cause.

To review the In-House Defense Quarterly article, click here.

Traub Lieberman Attorneys Come Out to Support New York Law School Alumni Association

Traub Lieberman attorneys attended the New York Law School (NYLS) on April 2, 2019. The event was co-hosted by Dean Anthony Crowell and Traub Lieberman partner Meryl R. Lieberman (JD ’81), who graduated from NYLS and serves on the Board of Trustees and its Academic Affairs Committee. In attendance were Denis Farrell (JD ’00), Ali Jaffery (JD ’14), Gregory Perrotta (JD ’13), Copernicus Gaza (JD ’95) and Richard Rogers (JD ’95). 
 
“We are incredibly proud of our relationship with New York Law School,” said Lieberman, a founding partner of Traub Lieberman. “Our Westchester office is proud of the large number of NYLS alumni in our ranks. We are so pleased to support the alumni association’s efforts to re-engage alumni throughout the county and bring the law school to their community.” 
 
In addition to Dean Crowell, the event attracted many NYLS alumni who live or work in Westchester County. 
 

Photo of TLSS Attorneys at Alumni Association Event.

TLSS Partners Copernicus Gaza (JD ’95) and Richard Rogers (JD ’95) were joined by their wives and fellow NYLS graduates at the event. Pictured (l-r) are Gaza, Mary Foynes (JD ’95), Rogers, and Jacqueline Burns (JD ’95).

Traub Lieberman Partner Rina Clemens Will Be Installed as President of Palm Beach County Florida Association of Women Lawyers

Rina Clemens, partner at Traub Lieberman will be installed as President of the Palm Beach County Florida Association for Women Lawyers, at the Board Installation Luncheon on May 16, 2019. Rina focuses her practice on tort litigation, including premises liability, products liability, commercial liability, general liability, and trucking and transportation. She effectively defends the interests of insureds throughout the State of Florida. Rina is strategy driven in her practice and understands the importance of effective communication and evaluation.    

“All of us at Traub Lieberman are proud of our partner Rina’s accomplishments and know that she will continue to serve the community and the bar with the utmost professionalism, insight and compassion”, said Meryl Lieberman, Founding Partner. “We look forward to sharing in her many achievements in the years to come.”

Rina is a leader in the Palm Beach County legal community and the community at large. She has served on the Board of Directors for various legal and community organizations, such as Children’s Home Society, the Suncoast Foundation, the North County Section of the Palm Beach County Bar Association, and the Craig S. Barnard chapter of the American Inns of Court. She currently serves as President-Elect of the Palm Beach County Chapter for the Florida Association for Women Lawyers. Rina has been recognized in her legal community as a Leader in the Law and specifically recognized as a Top Attorney in the field of Personal Injury by Palm Beach Illustrated Magazine. 

TLSS Partners Co-Author CLM Magazine Article on Insuring Medical Devices Against Cyberattacks

TLSS partners Cheryl Vollweiler and Brian Bassett have teamed up with Scott Swift from AXIS Insurance to author the lead cover story for the March 2019 issue of CLM Magazine.

CLM Magazine - March 2019The article, titled “Is Any Body Safe?” takes a hard look at the coverage issues related to insuring medical devices, such as insulin pumps and pacemakers, against cyberattacks. In the new age of the Internet of Things (IoT), where medical devices are increasingly connected to the internet, the threat of hackers endangering the personal safety of patients is very real.

Ms. Vollweiler is based out of TLSS’ New York office, while Mr. Bassett is based out of TLSS’ Chicago location. The two frequently handle matters involving coverage and cyber-risk, and co-authored the article with Mr. Swift, cyber claims manager at AXIS Insurance Company,

Read the full article, “Is Any Body Safe?” in the March 2019 issue of CLM Magazine by clicking here.