3d DCA Watch -- Bunker Declares Joel Perwin Day!

Let's just lay out the cold hard facts:

Only two opinions issued today.

Both opinions are civil.

Both opinions have Joel Perwin representing the appellant.

Both opinions reverse in favor of the appellant.

'Nuff said!

Frye v. Daubert Steel Cage Death Match!

I've spent literally decades learning how to apply the relatively ancient (1923) Frye standard to expert testimony in state court.

Now come some whippersnappers (Big Business?) who want Florida courts to "get with the times" and adopt the newer (1995) federal Daubert standard.

But what will I do with all that "useless and pointless knowledge" -- I guess file it away right next to my 8-Tracks, cassette tapes, and broken VCR machines.

You can read the text of the bill here.

For an industry defense perspective go here; for a consumer perspective go here.

Personally, I love this quote from Joel Perwin:

"It's an attempt to make it much more difficult to get expert testimony before a jury. It takes decision-making away from the jury. It encourages tremendous judicial activism. It's ironic that these conservative legislators give judges all that power," he said.

Oh well -- at least Daubert hearings come cheap!

Question -- should our state judges add to their workload and begin conducting complex and lengthy inquiries into highly technical or scientific matters where experts offer competing and contradictory testimony?

Don't they have enough on their (severely underfunded) plate?

Victor Diaz Is A "Disgruntled Taxpayer" And Other News.

Victor Diaz is many things.

Bright, handsome, impeccably groomed -- sure.

Hail of a trial lawyer -- of course.

Now add one I haven't heard before:

"I point out as a disgruntled taxpayer . . . the taxpayers will pay for the write off of those loans through the TARP process,'' Diaz said, referring to a federal bailout of major banks in 2008.

Victor continued, 

"I mean, take a look at my 1099s.  Does anyone know the latest on extending the Bush tax cuts?  Don't even get me started on the luxury tax.  Boy does this crap really hack me off!  Umm, where was I"?

It's ok Victor, I'm worried too.

In other news, Joel Perwin scores a big win before the Florida Supremes, reversing the 4th DCA on whether "lost profits" damages are subject to pre-judgment interest.

This seems like a no-brainer to me, but then again there's only a century of uninterrupted precedent on the issue (i.e., enough to get it screwed up in state court):

In order to resolve the conflict between these cases, this Court must do nothing more than reassert its established precedent. For the reasons expressed below, we conclude that this Court's precedent has remained unchanged for over one century, and that prejudgment interest is a matter of right under the prevailing “loss theory” of recovery for pecuniary damages, i.e., damages for economic or tangible losses.

Ouch.

Judge Martinez Reversed On Forum Non Banana Boat Death

Now that's a headline I thought I'd never write.

Actually, it's a very unfortunate case involving a tourist who died riding a Banana Boat in the Bahamas which Judge Martinez dismissed on forum non grounds.

The original opinion is here.

In a thorough opinion by Middle District of Georgia Judge Hugh Lawson, sitting by designation, the Eleventh Circuit identified a number of serious errors in the district court opinion, including a fundamental one relating to the scope of the relevant inquiry:

The district court considered the Southern District of Florida to be the relevant forum for purposes of the forum non conveniens test. In weighing the private interests, the district court looked only at the contacts between the case and the Southern District. Limiting its consideration to just one judicial district was improper. “[T]he relevant forum for purposes of the federal [forum non conveniens] analysis is the United States as a whole.” Aldana, 578 F.3d at 1293; Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1303 (11th Cir. 2002) (“[F]ederal courts, in the forum non conveniens context, do not focus on the connection between the case and a particular state, but rather on the connection of the case to the United States as a whole.”) The district court should have analyzed the forum non conveniens question by looking at all contacts between the case and the whole United States. This would include consideration of the plaintiff’s witnesses who are located in Florida, including the eyewitnesses and the damages witnesses, as well as the documentary evidence located in Florida, including documents and records relating to damages. While the district court stated that it was unaware of any witnesses or evidence located in the Southern District of Florida, whether the witnesses and documents are located in the Southern District as opposed to the Middle District is irrelevant in a federal forum non conveniens analysis. It was error for the district court to consider only the contacts that the case had with the Southern District of Florida.

I reviewed the original opinion and don't see any discussion of whether or not the inquiry should be limited to the SD FL or the United States as a whole (and no reference to the controlling Aldana opinion).

Congrats to Gabrielle D'Alemberte for a huge victory and a nice way to end the year (ok, you too Joel but I hope you don't mind if I don't put up your picture).

Gabby's blog is here btw.