So What Happens if You Allegedly Defame Someone While Defending a Defamation Action?

It's Valentine's Day, so of course let's discuss whether Levin Middlebrooks should be extended to an attorney's ex parte out of court interviews of potential third-party witnesses.

Should we use the usual absolute immunity analysis, or create a new qualified privilege to cover this particular circumstance?

Answers Justice Pariente:

We hold that Florida’s absolute privilege, as this Court has developed the common law doctrine, was never intended to sweep so broadly as to provide absolute immunity from liability to an attorney for alleged defamatory statements the attorney makes during ex-parte, out-of-court questioning of a potential, nonparty witness in the course of investigating a pending lawsuit. In this narrow scenario, we conclude that a qualified privilege instead should apply to ex-parte, out-of-court statements, so long as the alleged defamatory statements bear some relation to or connection with the subject of inquiry in the underlying lawsuit. A qualified privilege requires the plaintiff to establish express malice. However, where the statements do not bear some relation to or connection with the subject of inquiry in the underlying lawsuit, the defendant is not entitled to the benefit of any privilege—either absolute or qualified.

But Justice Lewis, in dissent, no likey:

I would not begin constructing qualified privileges (as the majority does here) and I would not superimpose the law of express malice into this area of the law. I would analyze the present case within our current legal framework and address whether the conduct is within the litigation privilege. Next, I would evaluate whether the alleged statements were inherently related to or connected with the underlying litigation.

Hey, I think Justice Lewis is on the right side of this one.

What say you?

In other news, the elusive butterfly himself, Richard Brodsky, has a new blog, Splendid Spitter, which contains an eclectic collection of erudite and well-informed opinions on a variety of interesting topics -- in other words, the exact opposite of this crappy space!

Good luck Richard (and keep after those auditing firms in the Miami Beach Community Health Center matter).

Oh, and a happy happy Valentine's Day -- enjoy the evening with someone you love.

Let's Talk About Love!

Yes kids, it's Valentine's Day and I'm feeling impossibly romantic.

I hope you are too?

Let's do a love edition:

1.  Wouldn't it be great if our wide-eyed, reptilian Governor said something like this:

"Look into your hearts and ask yourselves: 'Isn't it time?' " said Gregoire, as cheering supporters chanted "Thank you! Thank you! Thank you!"

"We did what was just. We did what was fair. We stood for equality, and we did it together, Republicans and Democrats, gay and straight, young and old, and a number of our faith organizations. I'm proud of who and what we are as a state," the governor said.

2.  More depos for Rothstein (somebody somewhere is loving this).

3.  Judge Marra refuses to dismiss punitive damages allegations in case involving an allegedly defective pain pump.

Through their Complaint, Plaintiffs allege actual knowledge of the danger posed by using the pain pump through the reports identified in subsections 20(c) and 20(d) of the Complaint. Plaintiffs further allege that “Although I-Flow had the capacity to use vendors to reach out to all orthopedic surgeons nationally, I-Flow’s officers and/or directors chose not to send out any Dear Doctor or Dear Healthcare Professional letters to surgeons or hospitals.” Complaint at ¶ 20(f). At least one Florida Court has determined that a product manufacturer’s actual knowledge of a danger followed by a failure to warn of that danger supports punitive damages. See Holmes v. Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1191-92 (Fla. 4 DCA 2005) (“We agree with plaintiffs that the proffer reflected facts from which it could be found that Firestone knew about the tread separation, but delayed warning the public in order to protect its own financial interests. Such a finding would support punitive damages.”) The Court finds that Plaintiffs have met the pleading requirements articulated in Iqbal and Twombly and dismissal of their claim for punitive damages is not warranted.

(Ok, I only quoted this because I love talking about Iqbal/Twombly.)

4.  More love for Jeremy Alters:

The former nanny, Katelyn Sullivan, meanwhile, said in a suit filed two weeks ago that Alters charged more than $170,000 on her credit cards, withheld $20,000 in pay, and even made her sell her old Volvo because he didn't like how it looked in his driveway.

Both are bunk, Alters says. He has filed a motion to dismiss the Argentine case and this week plans to file a similar motion against Sullivan's claims.

"Her lawsuit is nonsense. Her claims are false," he says.

The part about the Volvo better be!

SFL Mixed Messages Friday the 13th Valentine's Day Edition!

Sheesh what a week. I hope you all survived. However, if you're in a morbid Friday the 13th frame of mind you can see a partial list of those attorneys that didn't here (thanks so much for the downer, Brian!).

Hey, did you know that according to National Director of National Intelligence Dennis Blair, all you fired lawyers and staffers are now a greater threat to our national security than good old fashioned Muslim terrorists? Well, he did kinda say that.

Me, I'm gonna stay positive. After all, it's Valentine's Day weekend and the Coconut Grove Arts Festival is in town. If I'm lucky maybe I can combine a stop there this weekend with this interesting list of new places to visit. Who knows, maybe I'll even become a bike messenger in Chicago.

Weekends always offer possibilities, don't they?

Whatever you do this Valentine's Day weekend, make it special not just for you, but especially for your loved ones. Nothing brings people closer together than hard times:

Given the economic downturn, is passion too in recession? Or will couples fling themselves into each other's arms to compensate for their inability to spend, spend, spend?

Professor Helen Fisher, of Rutgers University, holds this latter theory.

The sheer stress of money worries in general, and fear of redundancy in particular will, she argues, elevate levels of the chemical dopamine in the brain - and dopamine is associated with romantic love.

"Times of stress can trigger feelings of attraction - quite simply, you're more susceptible," she said.

So go out and have some fun this weekend. Hail, you can even show someone you care by volunteering to help out -- there is no greater balm for the soul than that.

Well, it's nearly quitting time and I want to get out there and windsurf before all the amateurs show up and spoil my ride.

Have a great long weekend everbody!