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Richbell v. Toussaint

Florida Court of Appeals, Fourth District

June 21, 2017

GWEN E. RICHBELL and ALAN RICHBELL, as Personal Representatives of the ESTATE OF DEVON LEIGH RICHBELL, deceased, on behalf of Estate and on behalf of themselves as surviving parents, Appellants,
v.
ERNST TOUSSAINT, WHOLFNEY K. JEAN FRANCOIS, GRADY GRAY, GRADY GRAY TRUCKING, INC., SHADY GRADY TRUCKING, INC., TRIPLE "H" TRUCKING, INC., JEFFREY L. LENNARD, and B.E. LENNARD & SONS, LLC., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Consolidated appeals from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; George Shahood, Senior Judge; L.T. Case No. 432011CA000989CAAXMX.

          Bard D. Rockenbach and Adam Richardson of Burlington & Rockenbach, P.A., West Palm Beach, and Gregg Schlesinger and Zane Berg of Schlesinger Law Offices, P.A., Fort Lauderdale, for appellant.

          Shannon Kain of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Peter A. Miller of Peter A. Miller & Associates, P.A., Coral Gables, for appellee Ernst Toussaint and Wholfney K. Jean Francois.

          Peter D. Webster of Carlton Fields Jorden Burt, P.A., Tallahassee, and David M. Goldstein of Marcos Rothman Scharf Valdez Nguyen & Goldstein, P.L., Hollywood, for appellees Jeffrey Lennard and B.E. Lennard & Sons, LLC.

          Scott A. Cole and Daniel M. Schwarz of Cole, Scott & Kissane, P.A., Fort Lauderdale and Melinda S. Thornton of Cole, Scott & Kissane, P.A., Miami, for appellee Triple "H" Trucking Inc.

          Warren Kwavnick of Cooney Trybus Kwavnick Peets, Fort Lauderdale, for appellee Grady Gray and Grady Gray Trucking, Inc.

          May, J.

         The plaintiffs appeal a final judgment in a wrongful death action. They argue the trial court erred in certain evidentiary rulings and in giving a special jury instruction. Two of the defendants cross-appeal an order denying their motion to limit the judgment against the owner of one of the vehicles, pursuant to section 324.021(9)(b)(3), Florida Statutes (2014). We affirm all issues on direct appeal without further comment. We reverse on the cross-appeal.

         A bizarre sequence of events on a two-lane road resulted in the tragic death of the plaintiffs' daughter. Their daughter, and a second vehicle following her, attempted to pass two tractor-trailers. They began their attempt in a passing zone, but ended their attempt in a no-passing zone. When they cut back in front of the two tractor-trailers, they encountered a vehicle stopped to make a left turn.

         The plaintiffs' daughter was able to stop, but the vehicle following her rear-ended her car, forcing her into oncoming traffic where another truck traveling in the opposite direction collided with her vehicle. She died as a result of the accident. The plaintiffs filed suit against the driver and owner of the vehicle that rear-ended their daughter's vehicle, the driver and owner of the truck that ultimately collided with her, and the owner of the trailer attached to his truck.

         The plaintiffs' theory against the truck driver in the second collision was that he negligently failed to avoid the accident, due in part to his age and physical condition, which caused him to have a slower reaction time than reasonable. The plaintiffs' accident-reconstruction expert rendered his opinion on the truck driver's negligence without having reviewed his medical records.

         Prior to trial, the plaintiffs obtained the truck driver's medical records, and deposed his treating physicians, over his objection and request for a protective order. The plaintiffs ultimately sought a compulsory medical examination just prior to trial. The trial court granted the motion, but we granted a petition for writ of certiorari. Gray v. Richbell, 144 So.3d 573 (Fla. 4th DCA 2014).

         Based on our decision, the trial court quashed its order permitting the compulsory medical examination and ruled that "until the Fourth issues a final ruling, there will be no mention of the medical condition."[1] The plaintiffs proffered their expert's medical testimony outside the presence of the jury. He would have testified that the truck driver suffered from a form of dementia that causes poor reaction time and perception. The trial court also granted ...


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