"FIRST DISTRICT COURT OF APPEAL"
FIRST DISTRICT COURT OF APPEAL TALLAHASSEE, FLORIDA WESLEY WEBSTER, Plaintiff/Appellant, APPEAL CASE NUMBER: vs. 1D08-5114 Body Dynamics, Inc. d/b/a BDI LT. CASE NO.: 01 01 CA 137 Pharmaceuticals, The Pantry, Inc. f/k/a Lil’ Champ Food Stores, Inc. and Nittany Pharmaceuticals, Inc. Defendants/Appellees. _________________________________ PLAINTIFF/APPELLANT’S INITIAL BRIEF ________________________________________ ON APPEAL FROM THE 8TH JUDICIAL CIRCUIT JUDGE DAVID L. REIMAN, County Judge, Union County, Florida _____________________________ Tracy Raffles Gunn GUNN APPELLATE PRACTICE P.A. Florida Bar Number 984371 777 S. Harbour Island Blvd. Suite 770 Tampa FL 33602 (813) 254-3183 firstname.lastname@example.org Appellate counsel for Appellant TABLE OF CONTENTS TABLE OF CONTENTS...................................................................................... i TABLE OF AUTHORITIES............................................................................... ii STATEMENT OF THE CASE AND FACTS .................................................... 1 SUMMARY OF THE ARGUMENT .................................................................16 ARGUMENT ......................................................................................................18 I. THE TRIAL COURT’S REFUSAL TO ALLOW EVIDENCE OF AN FDA RECALL ON THE ISSUE OF DEFECT IN A STRICT LIABILITY CASE IS REVERSIBLE ERROR REQUIRING A NEW TRIAL. ........................18 A. EVIDENCE OF A GOVERNMENT RECALL IS ADMISSIBLE TO PROVE THE EXISTENCE OF A DEFECT. ...........................................18 B. THE SUBSEQUENT REMEDIAL MEASURE RULE DOES NOT APPLY TO BAR EVIDENCE OF A GOVERNMENT RECALL AS OPPOSED TO A DEFENDANT’S VOLUNTARY REMEDIAL MEASURES. ...........................................................................................22 C. IN THIS PARTICULAR CASE, THE REFUSAL TO ALLOW EVIDENCE OF THE RECALL MISLED THE JURY BECAUSE IT CREATED THE FALSE IMPRESSON THAT THE FDA INVESTIGATION CONCLUDED THAT THE PRODUCT WAS SAFE FOR SALE TO THE PUBLIC. ................................................................24 II. MR. WEBSTER IS ENTITLED TO A NEW TRIAL BECAUSE IMPROPER AND PREJUDICIAL EVIDENCE OF HIS UNRELATED DRUG USE WAS PUT BEFORE THE JURY. ..........................................25 CONCLUSION ...................................................................................................33 CERTIFICATE OF COMPLIANCE ................................................................34 CERTIFICATE OF SERVICE ..........................................................................35 Page i TABLE OF AUTHORITIES Cases Barry v. Manglass, 389 N.Y.S.2d 870 (N.Y.A.D. 1976) ..................... 20, 23, 25, 35 Brantley v. Snapper Power Equipment, a Division of Fuqua Industries, Inc., 665 So.2d 241 (Fla. 3d DCA 1995)....................................................................19 Browning v. Lewis, 582 So.2d 101 (Fla. 2d DCA 1991) .......................................30 Calhoun v. Honda Motor Co., 738 F.2d 126 (6th Cir.1984) ..................................21 Carey v. General Motors Corp., 387 N.E.2d 583 (Mass. 1979) ....................... 21, 23 City of Miami Beach v. Wolfe, 83 So.2d 774(Fla.1955) .......................................22 City of Ocala v. Red Oak Farm, Inc., 673 So.2d 86 (Fla. 5th DCA 1996) ..............25 Clausell v. Buckney, 475 So.2d 1023 (Fla. 1st DCA 1985) ...................................27 Edwards v. Orkin Exterminating Co., Inc., 718 So.2d 881 (Fla. 3d DCA 1998)....26 Farner v. Paccar, Inc., 562 F.2d 518 (8th Cir. 1977) .......................................21, 23 Ferayorni v. Hyundai Motor Co., 711 So.2d 1167 (Fla. 4th DCA 1998) ................19 Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Ok. 1976)..................... 21, 35 Gordon Harper Harley Davidson Sales, Inc. v. Cut-chin, 350 S.E.2d 609 (Va. 1986) ...........................................................................21, 22 Harley-Davidson Motor Co., Inc. v. Carpenter, 350 So.2d 360 (Fla. 2d DCA 1977)....................................................................19 Harley-Davidson Motor Co., Inc. v. Daniel, 260 S.E.2d 20 (Ga. 1979) ........... 21, 23 Hessen v. Jaguar Cars, 915 F.2d 641 (11th Cir.1990) ...........................................21 Higgins v. General Motors Corp., 465 S.W.2d 898 (Ark. 1971)............................21 Page ii Longenecker v. General Motors Corp., 594 F.2d 1283 (9th Cir. 1979)...................21 Mack Trucks v. Conkle, 436 S.E.2d 635 (Ga. 1993) .............................................21 Maietta v. International Harvester Co., 496 A.2d 286 (Maine 1985) .....................21 Manieri v. Volkswagenwerk A.G., 376 A.2d 1317 (N.J. 1977) .............................20 Matsko v. Harley Davidson Motor Company, Inc., 473 A.2d 155 (Pa. Super. 1984) ...................................................................21, 23 Miller v. Ford Motor Co., 653 S.E.2d 82 (Ga. App. 2007) ....................................21 Millette v. Radosta, 404 N.E.2d 823 (Ill. App. 1980) ............................................23 Mount v. Camelot Care Center of Dade, Inc., 816 So.2d 669 (Fla. 3d DCA 2002)....................................................................31 Navarro v. Fuji Heavy Industries, Ltd., 925 F.Supp. 1328 (N.D.Ill. 1990) ............21 Nevels v. Ford Motor Co., 439 F.2d 251 (5th Cir. 1971).......................................21 Nichols v. Benton, 718 So.2d 925 (Fla. 1st DCA 1998) ................................... 25, 30 Pesce v. General Motors Corp., 939 F.Supp. 160 (N.D.N.Y. 1996).......................21 Pineda v. Ford Motor Co., 520 F.3d 237(3d Cir. 2008) (Pa.) ................................23 Rose v. Figgie Intern., Inc., 495 S.E.2d 77 (Ga. App. 1997) .................................20 Santos v. Chrysler Corp., 715 N.E.2d 47 (Mass. 1999) .........................................21 Shands Teaching Hospital v. Dunn, 977 So.2d 594 (Fla. 1st DCA 2007) ...............18 Shaw v. Jain, 914 So.2d 458 (Fla. 1st DCA 2005) .................................................26 State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 925 So.2d 1 (La. App. 2005) .21 State v. McClain, 525 So.2d 420 (Fla.1988) .........................................................31 Sterling Casino Lines, L.P. v. Plowman-Render, 902 So.2d 938 (Fla. 5th DCA 2005)....................................................................26 Page iii Stinson v. E.I. DuPont De Nemours and Co., 904 S.W.2d 428 (Mo. App. 1995) ..20 West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976) .............................19 Zeigler v. Fisher-Price, Inc., 302 F.Supp.2d 999 (N.D. Iowa 2004); .....................21 Statutes Section 90.803(4), Florida Statutes .......................................................................28 Other Authorities Restatement 2d of Torts, s. 402a ...........................................................................19 Treatises Padovano, Florida Appellate Practice, s. 18.5 at n. 17 ...........................................18 Page iv STATEMENT OF THE CASE AND FACTS Plaintiff/Appellant Wesley Webster appeals from a defense jury verdict and denial of new trial in this products liability claim for a stroke and serious personal injuries he suffered after ingesting an over -the-counter convenience store product containing ephedra. Plaintiff raises two issues on appeal: (1) the trial court’s refusal to allow evidence of an FDA recall of ephedra products; and (2) the improper admission of argument and evidence regarding Mr. Webster’s unrelated illegal drug use. Wesley Webster was 26 years old, living in Gainesville and working as a waiter at the Ale House, when he purchased an ephedra product from a nearby convenience store owned and operated by Defendant The Pantry, Inc., formerly known as Lil’ Champ Food Stores. 1 He ingested the product late in the evening of June 5, 1998. The next day his roommates found him unconscious in the shower and called 911. (R.V.25, T.V.2, P. 251-52). 2 He was unable to move or talk. (R.V. 26, T.V.3, P.353). 1 At the time of the incident, the convenience store was called “Lil’ Champ Food Stores.” In 2001, Lil’Champ and The Pantry, Inc., merged, and the name of the store changed to “The Pantry.” The named defendant is The Pantry Inc., f/k/a Lil’Champ Food Stores. For ease of reference the parties have referred to the seller as “The Pantry.” 2 For ease of reference, citations to the trial transcript are provided by both record volume and transcript volume. The transcript page numbers are used in the Record on Appeal and cited herein. Page 1 Mr. Webster was in Shands Hospital for over a month and in a rehabilitation center for six months. (R.V. 29, T.V.6, P. 697). When he was discharged from the rehabilitation center, Mr. Webster was still unable to talk, and had to be tied in his wheelchair. (R.V. 29, T.V.6, P. 698). Today, he is still paralyzed on one side. (R.V. 29, T.V.6, P. 698). At the time of the incident. Mr. Webster and his friend Justin Blow were working together as waiters at the Ale House. (R.V. 28, T.V.5, P. 657). By the time of trial, Mr. Blow had graduated from law school and passed the bar and was waiting to be sworn in as an attorney. (R.V. 28, T.V.5, P. 654). Mr. Blow explained that he and Mr. Webster were good friends who worked a lot together and also socialized together most of the time outside of work. (R.V. 28, T.V.5, P. 658). They were together practically every day in the time period prior to Wesley’s stroke. (R.V. 28, T.V.5, P. 675). Mr. Blow had been using an ephedra product called mini-thins or mini-Ts for several months, in order to have energy after working closing shifts that ended at 2:00 a.m. (R.V. 28, T.V.5, P. 657-58). He and Mr. Webster would use ephedra products together as “kind of a ritual” between shifts or on breaks. (R.V. 28, T.V.5, P. 659). Page 2 Mr. Blow specifically recalled going to the Lil’ Champ convenience store with Wesley so they both could purchase ephedra pills prior to Wesley’s stroke. (R.V. 28, T.V.5, P. 659). He testified that he observed Wesley consuming the ephedra on the day before the stroke. (R.V. 28, T.V.5, P. 667). He identified the product that they purchased and consumed by the labeling on the bottle. (R.V. 28, T.V.5, P. 661). He testified that for weeks before the stroke, this was the only type of ephedra product that he saw Wesley use. (R.V. 28, T.V.5, P. 684). Plaintiff’s counsel identified the product as one manufactured by Nittany Pharmaceuticals and distributed by Body Dynamics, Inc., d/b/a BDI Pharmaceuticals. (R.V. 11, P. 2003-2027). Mr. Webster sued The Pantry as seller and Nittany and BDI as manufacturer and distributor, all on theories of negligence and strict liability, and sued Nittany and BDI for negligent and intentional misrepresentation. (R.V. 11, P.2003-2027). Plaintiff specifically alleges that the ephedra product was unreasonably dangerous and defective, and that the defendants failed to properly test their products, failed to follow FDA requirements, and failed to warn or failed to provide adequate warnings of various dangers about which they were or should have been aware, including the risk of brain damage. (R.V. 11, P. 2003-2027). Plaintiff’s lead neurologist from Shands Hospital, Dr. William Triggs, testified that it was his opinion that Wesley Webster suffered a stroke caused by Page 3 ephedra. (R.V. 26, T.V. 3, P. 372). Mr. Webster’s sister had reported that he had been taking “handfuls” of ephedra. (R.V.26, T.V.3, P. 384; 393). FDA RECALL EVIDENCE In 2004, the FDA banned the products at issue in this case. Plaintiff’s counsel asked the court to take judicial notice of the FDA recall evidence, and the trial court denied that request. (R.V. 14, P. 2481-2618; R.V.35, P. 1516, 1535; hearing transcript pages 20-21, 39). 3 At trial, Plaintiff offered direct evidence of the 2004 recall through the testimony of FDA physician Susan Parisian. (R.V. 27, T.V.4, P.425). Plaintiffs argued that the recall was relevant to prove the existence of a defect at the time of manufacture, and that to disallow the ban would mislead the jury to assume that the product was allowed by the FDA and therefore not dangerous or defective. (R.V.35, P. 1533; hearing transcript page 37). The case was tried before Judge David Reiman, a County Court judge from Union County who was assigned to this circuit court case. Judge Reiman heard 3 The evidentiary issues were heard at an August 7, 2008 hearing prior to trial. The transcript of this hearing is in the Record at volume 35. In preparing the Record on Appeal, the clerk of the lower court paginated this transcript as a continuation of the trial transcript. For clarity, both the record page and hearing transcript page is provided. Page 4 the pretrial hearings on the key evidentiary issues in the case and also ruled on the post trial motions. Judge Reiman refused to allow plaintiff to reveal the 2004 recall to the jury. Defendants made two arguments to exclude the FDA recall: they asserted that it was not relevant or probative of any issue in the case, and that it was inadmissible under the subsequent remedial measure rule. (R.V.35, P. 1516-17; 1536-37; hearing transcript pages 20-21, 40-41). Judge Reiman ruled, and plaintiffs did not dispute, that the FDA ban was not relevant to the issue of notice by the Defendants. (R.V. 35, R.V.35, P. 1523; hearing transcript page 27). However, he further ruled that a plaintiff could not prove a strict liability claim without showing that the defendant manufacturer or seller knew of the defect at the time of sale or manufacture. (R.V.35, P. 1525-30; hearing transcript pages 29-34). Judge Reiman explained his belief that while notice of a defect is not an element of a strict liability claim in cases involving inherently dangerous products, a plaintiff seeking strict liability for a product that could be purchased over the counter at a local drug store did have to prove that the defendant knew of the alleged defect. (R.V.35, P. 1525-30; hearing transcript pages 29-34). He ruled that an over the counter item was not an inherently dangerous product, and that “no way” would the subsequent recall be used to prove a defect. (R.V.35, P. 1535, 1536; hearing transcript pages 39, 40). He further ruled Page 5 that even if defendants knew of the substance of the medicine behind the recall, that was insufficient, and that unless defendants knew specifically about the ban itself at the time of manufacture, that particular evidence could not be admitted. (R.V.35, P. 1530, 1535; hearing transcript pages 34, 39) Judge Reiman stated that he was confident in his knowledge of strict liability law, because he had written his “paper” on the subject. (R.V.35, P. 1525; hearing transcript page 29). He concluded with an express ruling that the 2004 ban was not relevant to or probative of any issue in the case. (R.V.35, P. 1537-38; hearing transcript pages 41-42). He also determined that the average person had likely heard something about the FDA investigating ephedra products, and the FDA recall, and that there was therefore no need for the plaintiff to have this evidence at trial. (R.V.35, P. 1536-37; hearing transcript pages 40-41). On the first day of trial, Judge Reiman confirmed that he had reviewed all of the filings on the FDA recall issue and reiterated his ruling that “the FDA ban is not part of this trial. So it should not be referred to or used as evidence in this particular trial.” (R.V. 24; T.V.1, P. 8). Again when plaintiffs called FDA physician Susan Parisian, plaintiff’s counsel requested that the court reconsider its ruling on the FDA ban, and specifically argued that it was relevant to show the existence of a defect. (R.V. 26, Page 6 T.V.3, P.415-18). Plaintiff further argued that to disallow the evidence would present an inaccurate picture to the jury because they would be told that the FDA had been investigating ephedra products and if they were not told of the result of that investigation (recall), they would assume that the FDA had cleared the products as safe. (R.V. 26, T.V.3, P.419-420). The trial judge reiterated his decision that the 2004 recall was inadmissible as to both the negligence and strict liability claims, because “a 2004 FDA ban is not relevant to what happened in 1998 and the knowledge that they had.” (R.V. 26, T.V.3, P.422). Dr. Parisian did testify regarding the FDA investigation into ephedra, and catalogued the various dangers known to the scientific community from 1993 to the date of the incident in 1998. (R.V. 27, T.V.4, P.454-499). She testified regarding preliminary FDA recommendations, which included dosing and length of use limits that were exceeded by defendants’ products, the risk of using the product with caffeine, and labeling requirements that were violated by defendants. (R.V. 27, T.V.4, P.471-82). She opined that the defendants’ product was dangerous and defective. (R.V. 27, T.V.4, P.484). However, she was only allowed to discuss the fact that there was a proposed rule requiring these warnings on ephedra products, and was not permitted to discuss the ultimate outcome, which was a complete ban. (R.V. 27, T.V.4, P. 481; 500). Page 7 ILLEGAL DRUG EVIDENCE At trial, over strenuous objection by plaintiff, defendants were permitted to argue that Mr. Webster was taking illegal drugs and that these may have contributed to or caused his condition. Significantly, the trial judge specifically noted on several occasions that it would be extremely prejudicial to allow evidence that Mr. Webster was an illegal drug user, absent proof that the other drugs contributed to his condition. At a pretrial hearing, the trial court emphasized that use of illegal drugs should not come in unless the defendants proved the specific drugs could cause the same condition because “it’s going to have a substantial taint to [the plaintiff], meaning that he’s a druggie and they’re going to go, oh man, that druggie shouldn’t get any money.” (R.V.35, P. 1545; hearing transcript page 49). Again before the commencement of trial, the trial court went into detail about the prejudices against personal injury plaintiffs who use drugs: “I believe that people who use crack cocaine are flirting with a heart attack . . . nothing more than common feelings, common opinions . . . .I do believe that people in general, or fact-finders in general, would have a certain attitude about drug users.” (R.V.24, T.V.1, P. 9). Page 8 The drug information in this case came from two sources. First, the medical records show that when Wesley Webster was unable to communicate, his doctors spoke with his family and friends to try to get some idea what might have happened. (R.V.26, T.V.3, P.386-88). One note indicates that doctors spoke with Mr. Webster’s mother and sister, who did not live with him in Gainesville, and that one or both of them indicated that they were concerned that Wesley may have been experimenting with various drugs, including LSD, ecstasy, and marijuana. (R.V.26, T.V.3, P.386-88). There is no evidence that they had firsthand knowledge of his drug use. They did not identify a particular time or date on which he taken any particular drug. (R.V.26, T.V.3, P.386-88). The note was at least ambiguous as to whether this information came from Wesley’s sister only, or also from his mother. (R.V.26, T.V.3, P.386-88). Wesley’s mother, Constance Webster, testified at trial and stated unequivocally that she never told the doctors that her son had used any illegal drugs. (R.V. 29, T.V.6, P.693). She was aware that some kids in college do use drugs, and asked the doctors to perform a drug test to rule out that possibility in Wesley’s case since no one knew what had happened to him, and since she was not living in the same town or personally observing his behavior. (R.V. 29, T.V.6, P.693-96). The hospital did the test and told her it was negative. (R.V. 29, T.V.6, P.695). Page 9 Wesley’s close friend and former co-worker Justin Blow testified that he never knew of Wesley taking any street drugs or illegal drugs. (R.V. 28, T.V.5, P.669). He never saw Wesley take illegal drugs, never saw Wesley with illegal drugs, and never heard Wesley talk about illegal drugs. (R.V. 28, T.V.5, P. 673). He never told any of the hospital staff that Wesley took any illegal drugs. (R.V. 28, T.V.5, 671). Notably, there were no credibility issues with Mr. Blow. When Wesley was first admitted into the hospital, Mr. Blow freely informed the hospital that the two had been taking ephedra. ((R.V. 28, T.V.5, 672). At the time of trial he had graduated from law school and passed the bar exam. (R.V. 28, T.V.5, 654). Mr. Blow has not had any contact with Mr. Webster since his immediate recovery period, so there was no implication that he was altering his testimony to help a friend. (R.V. 28, T.V.5, 673). In addition to the family conversations, when Wesley Webster regained consciousness but was still unable to move or speak, Dr. Rooney Foster attempted to communicate with him by reading his eye movements. (R.V. 26, T.V.3, 388). She asked him various questions about his activities prior to being incapacitated. Her report states that he answered in the affirmative for using ecstasy. (R.V. 26, T.V.3, 388). Page 10 Importantly, Dr. Foster, the physician who had this eye communication with Mr. Webster, did not testify at trial. Instead, treating neurologist Stephen Nadeau, who did testify, questioned Mr. Webster’s ability to communicate in this manner. Dr. Nadeau’s contemporaneous notes indicate that he did not believe Wesley was actually and accurately communicating in this manner. (R.V.28, T.V.5, P. 603). He testified that in Mr. Webster’s case, “I wasn’t sure about his ability to communicate . . .I tried to establish a signal system with him looking up for yes and looking down for no and I just was never sure that he got it.” (R.V.28, T.V.5, P. 604). Dr. Nadeau further explained that it can be very difficult for patients to reliably develop and use these eye movement communications in the acute phase of a brain injury, as Mr. Webster was. (R.V.28, T.V.5, P. 605). Likewise, Justin Blow testified that when he saw Wesley Webster in the hospital, he was unable to communicate with him, and that Wesley could not talk or move, and did not even know that his close friend was in the room. (R.V.28, T.V.5, P. 671). He visited every day for weeks, and was never able to have a real, cognizable communication with Wesley. (R.V.28, T.V.5, P. 671-72). Mr. Webster has since regained the ability to speak, and testified that he did not take esctasy and that he would not have answered the question in that manner. Importantly, none of the drug tests performed in the hospital show that Mr. Webster tested positive for ecstasy. (R.V.35, P. 1549, 1556; hearing transcript Page 11 pages 53, 59; R.V.26, T.V. 3, P. 374-77; 411). In fact, Dr. Foster testified in deposition that the negative drug tests ruled out the allegedly positive history that she obtained by the eye movement communication. (R.V.26, T.V.3, P. 281). Plaintiff’s counsel argued that the eye movement communication was unreliable and inadmissible. (R.V.35, P.1538-57; hearing transcript pages 42-61). Plaintiff’s counsel further argued that the record of the alleged family conversations was inadmissible hearsay. (R.V.35, P.1538-57; hearing transcript pages 42-61). As to both the eye movement and family discussions evidence, Plaintiff argued that evidence of illegal drug use was irrelevant and of no probative value absent medical proof that the specific drugs could cause the same condition, and proof that Wesley took any such drugs at a time close enough to the stroke to have caused it. (R.V.35, P.1538-57; hearing transcript pages 42-61). Plaintiff also argued that evidence of illegal drug use is highly prejudicial and inflammatory and should be excluded on that basis. (R.V.35, P.1538-57; hearing transcript pages 42- 61). The trial court consistently ruled throughout the case that evidence of other drug use should not be admitted unless there was evidence of correlation to stroke and further ruled that this evidence was highly prejudicial. (R.V.35, P.1559; hearing transcript page 63; R.V. 26, T.V.3, P. 398, 399). Defendants did not dispute this ruling. (R.V. 26, T.V.3, P. 399). Page 12 In fact, it is undisputed that the records relating to the family conversations were not supposed to be shown to the jury. Unfortunately, this evidence was still placed before the jury on two occasions. First, during closing argument, defense counsel put a highlighted and unredacted medical note on the overhead projector which supposedly documented the conversation with Mr. Webster’s mother and sister about the possibility of illegal drug use. (R.V.33, T.V.10, P.1365-67). Defense counsel did not argue that the document was proper, conceded that it was used in error, and agreed to remove it from the jury’s view. (R.V.33, T.V.10, P.1365-67). Second, the unredacted medical records including the highlighted notes were sent back to the jury during deliberations. The trial judge had previously admitted all plaintiff’s medical records into evidence with the condition that they would be redacted to eliminate anything that was ruled inadmissible. (R.V.26, T.V.3, P.359). Near the end of trial, defense counsel represented to the court and to plaintiff’s counsel that he had reviewed the records and removed the inadmissible references and notes. (R.V.22, T.V. 9, P.1168). Plaintiff’s counsel stated that he would need to verify this had been done, and all parties agreed. (R.V.22, T.V. 9, P. 1168). When plaintiff’s counsel then asked for the time to check the records to verify this, the trial judge, who admits in his post trial order that he was impatient with the parties for not having done this earlier, denied the request. (R.V.33, T.V. Page 13 10, P. 1410-11). Therefore, the jury deliberated the case with evidence that all parties had agreed it should not have seen. There were two types of drugs at issue. The first group includes street drugs such as LSD and marijuana (GHB) which have no medical correlation to stroke. The trial court ruled, and the defendants admitted, that these drugs were not relevant. (R.V. 26, T.V.3, P. 397-99). The only potentially relevant drug was ecstasy. Unlike the other drugs, defendants did present a last minute medical opinion that ecstasy can cause stroke. This evidence was a surprise to plaintiff, because only days before trial the defense counsel stated “I know of no evidence that the use of street drugs caused or contributed to his stroke.” (R.V. 35, P. 1556, hearing transcript page 60). However, on the first day of trial, neurologist William Triggs apparently had just learned that ecstasy could also cause a type of stroke. (R.V.26, T.V.3, P. 389). He admitted that he was not an expert on the subject. (R.V.26, T.V.3, P. 389). Dr. Nadeau, who is a stroke expert, testified that it was unclear whether ecstasy can cause stroke. (R.V.28, T.V. 6, P. 644-45). He described it as a “nebulous scientific area,” and stated that “from a scientific point of view, whether [ecstasy] is capable of causing serious vasospasm is uncertain. The jury is still out on that one.” (R.V.28, T.V.6, P. 644). Page 14 Plaintiff’s counsel timely objected to the introduction of any evidence that Mr. Webster had taken ecstasy. (R.V.26, T.V.3, P. 404). THE VERDICT AND POST TRIAL PROCEEDINGS The jury reached a defense verdict in the case. (R.V.15, P. 2793-95). Plaintiff timely filed a Motion for New Trial. (R.V.15, P. 2810-14). Judge Reiman denied the motion without hearing. (R.V.15, P. 2815-24). This appeal timely followed. (R.V.15, P. 2832). Page 15 SUMMARY OF THE ARGUMENT The trial court’s refusal to admit evidence of the FDA recall was a legal error subject to de novo review, and requires a new trial. The trial judge, a county judge assigned to this circuit court case, believed that a plaintiff in a strict liability case had to prove that the defendant was on notice of the defect prior to the accident. This error of law led him to create an artificial and erroneous time barrier to the FDA evidence. Government recalls are admissible to prove the existence of a defect regardless of whether they were issued before or after the accident, as long as the products and alleged defect are similar. Here, similarity was never at issue. There are cases in Florida and around the country establishing that post-accident government recall evidence is relevant and admissible in a strict liability case, and that the refusal to admit such evidence is prejudicial error requiring a new trial. In this case, the prejudice was compounded because by limiting the evidence of the FDA investigation to events prior to the accident, the trial court’s ruling misled the jury into believing that the FDA had investigated ephedra but concluded it was safe enough to be sold over the counter at convenience stores. Plaintiff is entitled to a new trial. Page 16 Alternatively and additionally, plaintiff is entitled to a new trial because the trial court allowed the defendants to present evidence and argument that Mr. Webster was using a variety of illegal drugs prior to his stroke. The defendants conceded, properly, that the only drug that could possibly have caused Mr. Webster’s condition was ecstasy. They conceded that the other drugs were not relevant. The drug evidence was based on two sources. First, there was an inadmissible hearsay statement from Mr. Webster’s sister and possibly his mother that they suspected he was experimenting with a variety of illegal drugs. This statement was not based on personal knowledge. It did not identify any quantity or date or time of consumption. Hospital drug tests were negative. Second, a doctor recorded that she communicated with Mr. Webster by eye movement and that he answered that he had taken ecstasy. That doctor did not testify at trial to validate her findings. Neurologist and stroke expert Dr. Nadeau testified that such communication is unreliable, and further that in Wesley’s particular case he did not believe he was really communicating. Admitting highly prejudicial evidence of illegal drug use based on unreliable eye communication requires a new trial. Page 17 ARGUMENT I. THE TRIAL COURT’S REFUSAL TO ALLOW EVIDENCE OF AN FDA RECALL ON THE ISSUE OF DEFECT IN A STRICT LIABILITY CASE IS REVERSIBLE ERROR REQUIRING A NEW TRIAL. Standard of review: Plaintiff is aware that rulings regarding the admissibility of evidence and denial of new trial are generally reviewed under the abuse of discretion standard. However, as to the issue of the FDA recall, the trial court based its ruling on a mistake of law. Therefore, it is plaintiff’s position that this Court should review this issue de novo. See Shands Teaching Hospital v. Dunn, 977 So.2d 594 (Fla. 1st DCA 2007); Padovano, Florida Appellate Practice, s. 18.5 at n. 17. Alternatively, plaintiff believes that this ruling also presents an abuse of discretion by the trial court. A. EVIDENCE OF A GOVERNMENT RECALL IS ADMISSIBLE TO PROVE THE EXISTENCE OF A DEFECT. The trial judge in this case, County Judge Reiman, ruled that a defendant’s notice of the defect is an element of a strict liability claim except in cases involving the limited class of inherently dangerous products such as explosives. He was confident in his expertise in this field having written his “paper” on strict liability. He excluded the 2004 FDA recall because the defendants could not have known Page 18 about it at the time of this 1998 incident and, he found, it was therefore not relevant. Respectfully, Judge Reiman made a clear mistake of law. Notice is not an element of a claim for strict liability. There is no requirement that a defendant know of the defect, and especially not the particular evidence of defect, before strict liability can be imposed. A plaintiff in a strict liability case need only prove that the product was defective, and that it caused damage to the plaintiff. West v. Caterpillar Tractor Co., Inc., 336 So.2d 80, 86-87 (Fla.1976); Restatement 2d of Torts, s. 402a. Compare Ferayorni v. Hyundai Motor Co., 711 So.2d 1167, 1170 (Fla. 4th DCA 1998)(explaining that fault or notice is not required for strict products liability based on a defect, but may be required to some degree in a case involving failure to warn regarding an otherwise safe product). Therefore, the issue of notice and whether the recall occurred before or after the accident is an erroneous legal analysis. In fact, the law is clear in Florida and around the country that a post-accident recall is relevant to prove the existence of a defect. In Harley-Davidson Motor Co., Inc. v. Carpenter, 350 So.2d 360, 361 (Fla. 2d DCA 1977), the court held that a post-accident recall was not admissible to prove notice or causation, but held that it was admissible to prove that the defect existed. Likewise, in Brantley v. Snapper Power Equipment, a Division of Fuqua Industries, Inc., 665 So.2d 241 (Fla. 3d DCA 1995), the court held that it was prejudicial error to exclude evidence that Page 19 similar products were investigated, and corrective recall notices sent, after the manufacture of the product at issue in that case. Under these cases, plaintiff is entitled to a new trial. The law nationwide is likewise well established that a post-accident recall is relevant and admissible to prove the existence of a defect at the time of manufacture, as long as the product at issue has substantially similar qualities as those that led to the recall, and that the refusal to admit a post accident recall requires a new trial. In Barry v. Manglass, 389 N.Y.S.2d 870, 876 (N.Y.A.D. 1976), the court held that “a jury is entitled to know” about a post-accident recall, because it tends to make the existence of the defect in a particular model more likely. Likewise, in Manieri v. Volkswagenwerk A.G., 376 A.2d 1317, 1323-24 (N.J. 1977), the court held it was prejudicial error to refuse to admit a post-accident recall into evidence, and held that the plaintiff was entitled to a new trial. The court emphasized that a plaintiff is entitled to present evidence of a subsequent recall as proof that a defect existed at the time the product left the hands of the manufacturer. See also Stinson v. E.I. DuPont De Nemours and Co., 904 S.W.2d 428, 431-32 (Mo. App. 1995) (it is reversible error to exclude post-accident recall evidence in a strict liability case). In Rose v. Figgie Intern., Inc., 495 S.E.2d 77, 84 (Ga. App. 1997), the trial court refused to admit evidence of a subsequent recall, but the appellate court Page 20 reversed, and held that plaintiff was entitled to present the subsequent recall as evidence that a defect existed. Similarly, in Harley-Davidson Motor Co., Inc. v. Daniel, 260 S.E.2d 20, 22-23 (Ga. 1979), the court confirmed “the common-sense rule of other jurisdictions” that a government-mandated recall is admissible in a products liability case to show the existence of a defect. Numerous other courts have likewise held that evidence that a like product was recalled for a like defect is relevant and admissible to show that the defect existed in the product, even if the recall occurred after the accident. 4 Many cases do hold that the recall alone would be insufficient to prove a defect, but that is not the issue here. The evidence of the recall was relevant and should have been admitted for the jury to consider, along with all the other evidence in the case. The 4 See, e.g., Hessen v. Jaguar Cars, 915 F.2d 641, 648-649 (11th Cir.1990); Calhoun v. Honda Motor Co., 738 F.2d 126, 133 (6th Cir.1984); Longenecker v. General Motors Corp., 594 F.2d 1283, 1286 (9th Cir. 1979); Farner v. Paccar, Inc., 562 F.2d 518, 527-528 (8th Cir. 1977); Nevels v. Ford Motor Co., 439 F.2d 251, 258 (5th Cir. 1971); Zeigler v. Fisher-Price, Inc., 302 F.Supp.2d 999, 1021 (N.D. Iowa 2004); Pesce v. General Motors Corp., 939 F.Supp. 160 (N.D.N.Y. 1996); Navarro v. Fuji Heavy Industries, Ltd., 925 F.Supp. 1323, 1327 (N.D.Ill. 1990); Miller v. Ford Motor Co., 653 S.E.2d 82, 84 (Ga. App. 2007); State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 925 So.2d 1, 10-11 (La. App. 2005); Santos v. Chrysler Corp., 715 N.E.2d 47, 55 (Mass. 1999); Mack Trucks v. Conkle, 436 S.E.2d 635 (Ga. 1993); Gordon Harper Harley-Davidson Sales, Inc. v. Cut-chin, 350 S.E.2d 609, 612 (Va. 1986) ; Maietta v. International Harvester Co., 496 A.2d 286, 295 (Maine 1985); Matsko v. Harley Davidson Motor Company, Inc., 473 A.2d 155 (Pa. Super. 1984); Carey v. General Motors Corp., 387 N.E.2d 583 (Mass. 1979); Fields v. Volkswagen of America, Inc., 555 P.2d 48, 58 (Ok. 1976); Higgins v. General Motors Corp., 465 S.W.2d 898 (Ark. 1971). Page 21 trial judge improperly imposed a notice requirement in a strict liability case. Under this erroneous legal analysis, he created a legally unsupported date barrier for the recall evidence. The exclusion of the post-accident recall evidence was improper, and prejudicial, and requires a new trial. B. THE SUBSEQUENT REMEDIAL MEASURE RULE DOES NOT APPLY TO BAR EVIDENCE OF A GOVERNMENT RECALL AS OPPOSED TO A DEFENDANT’S VOLUNTARY REMEDIAL MEASURES. In addition to arguing that the recall evidence was not relevant because it occurred after the accident, defendants contended that the 2004 recall was inadmissible as a subsequent remedial measure. The trial court’s post trial order recites that this was not the basis for his ruling, but it was argued by defendants below and therefore will be addressed here. Florida Statutes section 90.407 provides that a defendant’s post-accident remedial measures are not admissible. This rule is intended to avoid deterring manufacturers and other defendants from voluntarily improving their products or premises. City of Miami Beach v. Wolfe, 83 So.2d 774, 776 (Fla.1955). The subsequent remedial measure rule does not bar admissibility of action taken by a government entity or mandated by law, as opposed to a defendant’s voluntary action. In Gordon Harper Harley-Davidson Sales, Inc. v. Cut-chin, 350 S.E.2d 609, 612 (Va. 1986), the court explained that government recalls remain Page 22 admissible because “recall campaigns are not voluntary; they are mandated, regulated, and enforced by federal law.” Numerous other courts have reached the same conclusion. See Pineda v. Ford Motor Co., 520 F.3d 237, 246 (3d Cir. 2008) (Pa.) (subsequent remedial measures rule does not bar admissibility of remedial action mandated by a superior governmental authority, because the policy goal of encouraging voluntary improvements for greater public safety would not be furthered by the exclusion of such evidence); Farner v. Paccar, Inc., 562 F.2d 518 (8th Cir. 1977) (recall notice sent out under compulsion of law is admissible); Matsko v. Harley Davidson Motor Company, Inc., 473 A.2d 155 (Pa. Super. 1984) (post-accident recall notice was not barred by the “subsequent repair” rule); Millette v. Radosta, 404 N.E.2d 823, 834 (Ill. App. 1980) (evidence of postaccident repairs is admissible in products liability cases; the purpose behind the rule, to avoid discouraging people from making repairs, is inapplicable since the recall of defective vehicles is not voluntary but mandated by federal statute); Harley-Davidson Motor Co., Inc. v. Daniel, 260 S.E.2d 20, 22-23 (Ga. 1979) (subsequent repair doctrine does not bar admissibility of subsequent, government- mandated recall). See also Carey v. General Motors Corp., 387 N.E.2d 583, 588 (Mass. 1979); Barry v. Manglass, 389 N.Y.S.2d 870 (N.Y.A.D. 1976). Because the recall in this case was an FDA action and not a voluntary action by any defendant, the subsequent remedial measure rule cannot support exclusion of Page 23 the recall evidence in this case. C. IN THIS PARTICULAR CASE, THE REFUSAL TO ALLOW EVIDENCE OF THE RECALL MISLED THE JURY BECAUSE IT CREATED THE FALSE IMPRESSON THAT THE FDA INVESTIGATION CONCLUDED THAT THE PRODUCT WAS SAFE FOR SALE TO THE PUBLIC. In this particular case, the error in refusing to admit the FDA recall was particularly prejudicial because the jury was only told part of the story of the FDA investigation into ephedra. FDA physician Dr. Parisian catalogued the FDA’s efforts beginning in 1993 to investigate reports of stroke and cardiac problems associated with ephedra. She was able to tell the jury only what happened through 1998 and only that the FDA had proposed a limit on dosage and various label warnings. In fact, the jury was told that at that time the FDA did not have any actual authority to require any such labels or warnings. (R.V.27, T.V. 4, P. 439-441). By precluding Dr. Parisian from telling the full story of the FDA investigation, including the fact that it ultimately did gain authority to regulate these products, and its ultimate decision to recall and ban them entirely, the trial court allowed defendants to present a confusing and misleading picture to the jury. The jury was led to believe that these products were not dangerous enough for the FDA to ban them, or even be given authority over them at all. Prejudicial error results, and a new trial is required, where the exclusion of evidence may create a Page 24 confusing or misleading inference. See City of Ocala v. Red Oak Farm, Inc., 673 So.2d 86 (Fla. 5th DCA 1996). In Barry v. Manglass, 389 N.Y.S.2d 870, 876 (N.Y.A.D. 1976), the court noted that juries are well aware that recalls are issued, and may assume that the product is not defective if they are not told of a recall that in fact occurred. That is precisely what happened in this case. In fact, Judge Reiman specifically noted that the average person is aware that the FDA investigated ephedra. Plaintiff should have been permitted to use the recall evidence to prove the existence of a defect, and to prevent the misleading implication that the government had determined the product was safe enough to be sold to the public over the counter at a convenience store. The existence of a defect was the key issue in the case, and this error requires a new trial. II. MR. WEBSTER IS ENTITLED TO A NEW TRIAL BECAUSE IMPROPER AND PREJUDICIAL EVIDENCE OF HIS UNRELATED DRUG USE WAS PUT BEFORE THE JURY. STANDARD OF REVIEW: Admissibility of evidence and a denial of new trial is reviewed under the abuse of discretion standard. The trial court improperly allowed evidence of and reference to Wesley Webster’s alleged illegal drug use. Florida law strictly limits evidence of a party’s illegal drug use. In Nichols v. Benton, 718 So.2d 925, 927-28 (Fla. 1st DCA 1998), this Court held that a new trial was required where the trial court admitted Page 25 evidence of a personal injury plaintiff’s past drug use. The plaintiff admitted to previously using marijuana “to excess” and that he was, at the time of the accident, using once or twice a month. The defense presented medical testimony that regular marijuana use can cause brain damage, which was the primary loss claimed by the plaintiff in the case. Despite this possible connection, this Court nevertheless found the relevance too remote, and instead recognized the overwhelming prejudicial effect of allowing the defense to present evidence of the plaintiff’s prior illegal drug use. This Court emphasized that it had “serious questions concerning the fairness of the proceeding,” and found that this evidence “seriously and unfairly prejudiced appellant in the eyes of the jury.” 718 So.2d at 926. Likewise, in Shaw v. Jain, 914 So.2d 458 (Fla. 1st DCA 2005), this Court again reversed an order denying new trial where the trial court admitted evidence of a personal injury plaintiff’s prior drug use. This Court held that absent proof that the drug use contributed to the alleged injuries, it was irrelevant, and further held that even if a connection had been established, the repeated reference to the plaintiff’s drug use amounted to prejudicial error. See also Sterling Casino Lines, L.P. v. Plowman-Render, 902 So.2d 938 (Fla. 5th DCA 2005) (allowing evidence of plaintiff’s prior alcohol problems was prejudicial error requiring a new trial); Edwards v. Orkin Exterminating Co., Inc., 718 So.2d 881 (Fla. 3d DCA 1998) Page 26 (plaintiff in negligence action was entitled to a new trial where defendant was allowed to insinuate that plaintiff had a history of alcohol and drug use); Clausell v. Buckney, 475 So.2d 1023, 1024 (Fla. 1st DCA 1985) (evidence of plaintiff's intemperate use of controlled substances is inadmissible “in the absence of additional proof that such habits had relevancy upon plaintiff's condition at the time of the accident.”). In this case, the defendants admitted that of the various drugs referenced in this case, only ecstasy had any potential medical relevance as a drug that could cause a similar condition. It is undisputed that any evidence of LSD, marijuana, or any other street or illegal drugs was not relevant and not admissible. As for the assertion that Wesley was taking esctasy, this evidence came from two sources: the eye communication with Dr. Foster, and the medical record reflecting a conversation with Wesley’s family. Neither source should have been presented to the jury. Significantly, Dr. Foster did not testify at trial to validate her findings of a positive response with eye communication. Instead, treating neurologist Stephen Nadeau, who did testify, questioned Mr. Webster’s ability to communicate in this manner. His contemporaneous notes indicate that he did not believe Wesley was actually and accurately communicating in this manner. He testified “I wasn’t sure about his ability to communicate . . .I tried to establish a signal system with him Page 27 looking up for yes and looking down for no and I just was never sure that he got it.” (R.V.28, T.V.5, P.604-05). Dr. Nadeau explained that it can be very difficult for patients to reliably develop and use these eye movement communications in the acute phase of a brain injury. All the lay witnesses likewise testified that Wesley was not able to communicate during his first weeks in the hospital. Due to the inherent unreliability of this alleged communication, and the lack of testimony from Dr. Foster at trial to validate it, this evidence should have been excluded. As for the note regarding the family member communication, defendants conceded that it was inadmissible. This was a proper concession. The note is inadmissible hearsay. The note is ambiguous as to whether the statement was made by Wesley’s sister only or his sister and his mother, but neither of them had firsthand knowledge of any drug use by Wesley. Neither of them lives with Wesley or testified that they observed him using drugs. The note reflects a family member concerned that her brother may have been experimenting with a catalog of substances. While defendants initially argued that the note fell under the exception for statements made to obtain medical treatment, that exception applies only to statements made by the patient himself or someone “who has knowledge of the facts” and is legally responsible for a patient who is unable to communicate. See Florida Statutes section 90.803(4). This statement Page 28 was not made by anyone with knowledge of the facts, and it is questionable whether it was made by someone with legal responsibility for Wesley. The note was shown to the jury twice, once in closing argument and then sent back with the exhibits, but this was apparently accidental. Defendants never argued that the note was properly submitted to the jury. Notably, there is no evidence of how much ecstasy Wesley took or when, and all the other evidence in the case disputes the claim that Wesley took ecstasy at all. When he did regain the ability to communicate, Wesley stated that he never took ecstasy. Wesley’s mother denied ever telling the doctors her son was taking drugs, and explained that she simply wanted them to perform a drug test to rule out that possibility. Wesley’s blood and urine tests in the hospital were negative for drugs. His closest friend and co-worker, who freely admitted at the hospital to taking ephedra with him, firmly denied ever seeing Wesley use or even talk about any other drugs. Equally important, there was not reliable medical testimony linking ecstasy to the type of stroke suffered by Wesley. As late as a few days before trial, defense counsel represented on the record that they did not intend to assert that any other drugs could have caused Wesley’s condition. This theory was a surprise to the plaintiff. When Dr. Triggs testified at trial, he stated that he had only recently Page 29 learned that ecstasy was in the class of drugs that might cause a stroke. He admitted that he was not an expert in this area. The person who is an expert in this area, Dr. Nadeau, testified that it was unclear whether ecstasy can cause stroke. He described it as a “nebulous scientific area,” and stated that “from a scientific point of view, whether [ecstasy] is capable of causing serious vasospasm is uncertain. The jury is still out on that one.” (R.V.28, T.V.5, P. 644). Therefore, there is not even reliable evidence that ecstasy could cause the type of stroke suffered by Wesley Webster. In Nichols, this court directly rejected a similarly tenuous connection. There, the plaintiff’s doctor gave “an affirmative response to a generic question as to whether ‘chronic drug and alcohol use by a man over ten years or so ... would have any effect on the outcome of his [neurological] testing.’” This court held that absent evidence of the plaintiff’s current chronic drug use, this was insufficient to provide a basis for admission of the drug and alcohol evidence. Likewise, in Browning v. Lewis, 582 So.2d 101 (Fla. 2d DCA 1991), the court held that expert medical testimony that drug and alcohol use by an expectant mother could cause injuries of the type alleged was irrelevant and required a new trial because no evidence demonstrated any causal relationship between the drug and alcohol use of the plaintiff mother and the injuries sustained by her baby. This court should similarly find that a new trial is required here. Prejudice is Page 30 not in question in this case. The trial judge acknowledged on several occasions that evidence of illegal drug use could be highly prejudicial, and defense counsel agreed. In Mount v. Camelot Care Center of Dade, Inc., 816 So.2d 669, 669 (Fla. 3d DCA 2002), the court recognized that evidence of prior drug and alcohol use in a personal injury case is the type of evidence that could “inflame” a jury and deprive plaintiff of a fair trial, and reversed a defense verdict and ordered a new trial. See also State v. McClain, 525 So.2d 420, 422 (Fla.1988) (in which the supreme court emphasized that illegal drug evidence can “seriously prejudice” a party in the eyes of the jury). To allow such highly prejudicial evidence on the basis of eye communication, which is of questionable reliability, and family member statements that were not based on personal knowledge is improper and requires a new trial. It is important to note that while Judge Reiman did not allow a hearing on the post trial motions, he did enter an order explaining his rulings. (R.V.15, P. 2815-24). Respectfully, the reasons stated in the order do not coincide with the rulings made at trial. On the issue of drug evidence, Judge Reiman’s post trial order states that he had ruled this evidence admissible. (R.V.15, P. 2816-21). However, it is apparent from the transcript that the court had ruled, and defendants had even agreed, that the only drug that was possibly relevant in the case was ecstasy. The medical record stating that Wesley’s family had reported they Page 31 thought he had been experimenting with many different types of street and illegal drugs, such as LSD and marijuana, was never supposed to be shown to the jury. Additionally, the post trial order reflects that the trial judge was annoyed with counsel for not redacting the medical records prior to closing argument, and that he allowed the unredacted records back because he thought this should have been done earlier. (R.V.15, P. 2822). Respectfully, the record reveals that all parties contemplated time to perform this function, and all agreed it needed to be done. In fact, defense counsel represented that it had been done, and did not dispute plaintiff’s counsel’s need for time to verify his representation. It is unfair to deny plaintiff a fair trial because the trial judge suddenly ran out of patience with the lawyers for not all completing this task at an earlier time. Because the drug evidence was irrelevant, based on hearsay, unreliable, and unduly prejudicial, the judgment below should be reversed for a new trial. Page 32 CONCLUSION For the foregoing reasons, the judgment below should be reversed and the case remanded for a new trial. Respectfully submitted, _________________________ Tracy Raffles Gunn GUNN APPELLATE PRACTICE P.A. Florida Bar Number 984371 777 S. Harbour Island Blvd. Suite 770 Tampa FL 33602 (813) 254-3183 email@example.com Page 33 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2), and is formatted using Times New Roman 14-point font. ___________________________ Tracy Raffles Gunn Page 34 CERTIFICATE OF SERVICE I certify that a true copy of the foregoing has been provided by U.S. Mail to the below listed addressees on October 23, 2009. ______________________ Tracy Raffles Gunn William H. Ogle, Esquire Mayfield & Ogle, P.A. 444 Seabreeze Blvd., Ste. 750 Daytona Beach, FL 32118 Co- Counsel for Plaintiff Hunter Shkolnik, Esquire Rheingold, Valet, Rheingold, Shkolnik & McCartney, LLP 113 E. 37th Street New York, NY 10016 Co- Counsel for Plaintiff Rodney Janis, Esquire Adams, Coogler, Watson, Merkle, Barry and Keller, P.A. 1555 Palm Beach Lakes Blvd., Ste. 1600 West Palm Beach, Florida 33401 Counsel for Defendant, The Pantry, Inc. Robert Biasotti, Esquire Carlton Fields 200 Central Avenue, Suite 2300 St. Petersburg, FL 33731 Appellate counsel for Defendant, The Pantry, Inc. Page 35 Michael D. Donsky, Esquire Birder and Donsky, P.A. Silverleaf Office Park 6224 NW 43rd St., Ste. A Gainesville, Florida 32653 Counsel for Defendant, BDI Michael Obringer, Esquire Marshall, Dennehey, Warner, Coleman and Goggin, P.A. 200 West Forsyth St., Ste 1400 Jacksonville, Florida 32202 Counsel for Defendant, Nittany David B. Weinstein, Esquire Kim Mello, Esquire Greenberg Traurig, P.A. 625 E. Twiggs St., Ste. 100 Tampa, FL. 33602 Appellate counsel for Defendant, Nittany Elliot H. Scherker, Esquire Greenberg Traurig, P.A. 1221 Brickell Ave. Miami, FL. 33131 Appellate counsel for Defendant, Nittany Page 36