Appellate

Wicker Smith not only successfully defends our clients in trial, but we also preserve our victories and reverse adverse rulings through our equally aggressive and experienced appellate department.

Our appellate lawyers perform the traditional work of drafting appellate briefs and presenting oral arguments to the Florida Supreme Court, Florida’s District Courts of Appeal, and the 11th Circuit Court of Appeals. In fact, Wicker Smith has appeared as appellate counsel in more than 1,500 reported decisions including several landmark opinions issued by the Florida Supreme Court. Our lawyers are also admitted to practice at the United States Supreme Court.

Our appellate lawyers also present interlocutory appeals to the District Courts in order to obtain immediate appellate review of decisions that address issues that fall within the scope of Rule 9.130, such as venue, personal jurisdiction, arbitration, various forms of immunity, and punitive damages.

We also assist our trial lawyers through the filing of original proceedings, filing petitions with the District Courts seeking the issuance of various writs, including certiorari, mandamus, and prohibition. The Appellate Department also will support our trial lawyers by drafting and arguing complex motions in the trial court, including motions for summary judgment, Daubert motions to exclude expert testimony, and motions seeking leave to amend the complaint to raise a claim for punitive damages. In addition, our appellate lawyers will attend trial in order to support the trial team, and to make sure that any potential issue on appeal has been properly preserved.

Working closely with our trial lawyers, Wicker Smith’s Appellate Department provides various services for our clients.

Dial v. Calusa Palms Master Assn., Inc., 337 So. 3d 1229 (Fla. 2022)

Attorneys: Michael R. D’Lugo

Wicker Smith has represented Calusa Palms since 2015, making this an important and long-awaited decision. In 2022, the Supreme Court of Florida handed down a decision that the Court has deemed “of great public importance”. In Dial v. Calusa Palms Master Ass’n, 308 So. 3d 690 (Fla. 2d DCA 2020), the Second District certified this question:

DOES THE HOLDING IN JOERG V. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., 176 SO. 3D 1247 (FLA. 2015), PROHIBITING THE INTRODUCTION OF EVIDENCE OF MEDICARE BENEFITS IN A PERSONAL INJURY CASE FOR PURPOSES OF A JURY’S CONSIDERATION OF FUTURE MEDICAL EXPENSES ALSO APPLY TO PAST MEDICAL EXPENSES?

The answer is NO.

Medicare providers routinely bill patients for services in amounts that greatly exceed what Medicare will pay for those services. Those providers must accept the amount that Medicare pays in order to participate in the program. The issue presented is whether the jury hears what the provider billed, or what the provider accepted in full and final payment from Medicare. This decision makes clear that the jury will only consider the amount the provider accepted as payment. According to the Medicare Enrollment Dashboard, there are over 4.5 million Floridians who are Medicare beneficiaries. This opinion will therefore have a broad impact in lowering the amount of medical expenses the jury may consider.

Comerica Bank and Trust, NA v. HCA Health Services of Florida, Inc., 372 So. 3d 262 (Fla. 4th DCA 2023)

Attorneys: Michael R. D’Lugo

The underlying case was a medical malpractice matter where the client hospital had admitted liability for a medication error during the resuscitation of an infant allegedly causing brain damage. Prior to trial, Plaintiffs brought in out-of-state counsel, who tried to substitute experts in multiple fields at the last minute in place of those originally disclosed. The trial judge denied multiple motions by Plaintiffs on this issue, and the case was tried with the original experts.

Plaintiffs asked the jury for $72.5 million, and the jury ended up awarding $158,000. The verdict triggered an award for attorneys’ fees pursuant to a previously rejected proposal for settlement.

Plaintiffs filed the appeal based largely on the inability to bring in the new experts.  Because the case had been referred to non-binding arbitration, the trial court would not allow the plaintiff to alter the playing field once the defendant hospital requested a trial de novo. After hearing oral arguments, the appellate court accepted the trial court’s refusal to allow the substitution of experts and issued a Per Curiam Affirmance on July 27, 2023.

Preston v. Estate of Natalie Romanoff, 368 So. 3d 463 (Fla. 4th DCA 2023)

Attorneys: Michael R. D’Lugo

The underlying lawsuit involved allegations of nursing home negligence. Plaintiff named an individual and a corporation in their Complaint who were not licensees of the facility. As such, the defense filed a Motion to Dismiss on the grounds that Plaintiff did not comply with the requirements of F.S. §400.023, but that motion was denied by the trial court. Wicker Smith filed a Petition for Writ of Certiorari, arguing that the trial court’s decision constituted a departure from the essential requirements of law for which there would be no adequate remedy by final appeal. The 4th DCA agreed and granted the petition, finding that “The trial court failed to follow section 400.023 in denying the Motion to Dismiss” and “Respondent did not allege the crucial element that Petitioners had performed under a contract or received a fee for the services performed.”

While this decision was issued without prejudice, it will preclude the tactic of including non-licensees as parties in the initial complaint in the future.

Phillips v. Delta Air Lines, Inc., 2022 WL 3571029 (11th Cir. 2022)

Attorneys: Michael R. D’Lugo

Plaintiff sued Wicker Smith’s client, a major Atlanta-based airline, in Federal court and alleged she suffered a compression fracture in her spine as the result of a hard landing on a flight from Fort Lauderdale to Raleigh. The defense of this case was initially problematic because Plaintiff produced medical records showing she was diagnosed with a compression fracture of her spine shortly after the landing and she ultimately underwent spinal surgery to correct the condition.

After disclosing the opinions of defense experts, Wicker Smith moved for summary judgment and established there was no evidence of a “hard landing”.  Plaintiff opposed the summary judgment.  In a series of Court Orders, the trial court granted our motion to strike the Plaintiff’s piloting expert and also granted our motion for summary judgment.

Plaintiff appealed these decisions. The appellate court affirmed summary judgment and adopted the arguments and law from our appellate brief.  This opinion from the United States Court of Appeals for the Eleventh Circuit will now provide helpful legal precedent on these issues moving forward.

Clarke v. Northwest Medical Center, Inc., 308 So. 3d 1031 (Fla. 4th DCA 2020)

Attorneys: Alyssa Reiter

This was a medical malpractice case that was transferred to Wicker Smith. Previous counsel had missed the deadline to request voluntary arbitration by one business day. The Defendant, who we represented, sought to enforce the cap on noneconomic damages that applies when a malpractice plaintiff rejects an offer of voluntary arbitration. The trial court enforced the cap.

On appeal, following oral argument, as well as the filing of an amicus brief for the Plaintiff, the appellate court affirmed. The decision saved our client over $2 million.

Gurin Gold, LLC v. Dixon, 277 So. 3d 600 (Fla. 4th DCA 2019)

Attorneys: Alyssa Reiter

This appeal arose out of a verdict for the Plaintiff following a jury trial in an automobile accident case. During trial, the Plaintiff’s counsel showed his expert an MRI image that the expert had not previously reviewed. The expert changed his testimony based on the review. The trial court denied the request for a new trial based on the new testimony.

On review, the appellate court reversed and remanded for a new trial. The appellate court agreed that the trial court abused its discretion in admitting the expert testimony. The appellate court held that even though Wicker Smith’s trial counsel had skillfully undercut the expert’s testimony on cross-examination, the Defendant had still been prejudiced by the mid-trial change in testimony.

Hullick v. Gibraltar Private Bank & Trust Co., 279 So. 3d 809 (Fla. 3d DCA 2019)

Attorneys: Alyssa Reiter

The former Chief Operating Officer of a bank corporation sued the bank and its Chief Executive Officer for defamation, claiming that the CEO made false statements about him to the corporation’s board of directors that destroyed the plaintiff’s reputation in the banking community. The plaintiff sought a seven-figure amount from the CEO. Wicker Smith obtained summary judgment in favor of the CEO.

On appeal, the appellate court affirmed the summary judgment. It held that the alleged statements did not constitute a “publication” to a third party. The court agreed with Wicker Smith’s argument extending previous case law, which held that statements made to certain employees of a corporation are statements to the corporation itself, to this case even though the Board of Directors was comprised of a majority of non-employee directors.

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