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.
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.
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.
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.
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.
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.
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.
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.
Attorneys: John Floyd Jr.
John Floyd, Jr. obtained a favorable ruling from the U.S. Sixth Circuit Court of Appeals following summary judgment entered in favor of our client in the trial court. Plaintiff alleged that our client violated his civil rights and alleged claims of deliberate indifference under 42 USC 1983. In its unanimous decision, the appellate court affirmed the ruling in favor of our client.
Attorneys: John Floyd Jr.
On appeal to the Supreme Court of Alabama, the Court affirmed a defense verdict reached at the trial level and found no reversible error.
Attorneys: Michael R. D’Lugo
Orlando Partner Michael D’Lugo D’Lugo recently prevailed in an appellate matter heard by the Florida Sixth District Court of Appeal.
We represented a Southwest Florida hospital in this case that involved a PA performing a vaginal exam on the Plaintiff. Plaintiff claimed the matter was a sexual assault case and filed it as such. Attorneys in our Sarasota office filed a Motion to Dismiss, arguing that it was a medical malpractice case and should be dismissed since the Plaintiff had not complied with the mandatory presuit period required by Florida statutes. The trial court denied our Motion to Dismiss.
Michael D’Lugo filed a Writ of Certiorari with the Florida Sixth DCA in August 2025, and in early April 2026 the Court quashed the trial court’s order, ruling that the case is a medical malpractice matter and must be filed and litigated as such, including the mandatory presuit investigation. The case will now go back to the trial court, where a final judgment will be entered because the statute of limitations has expired.
Congratulations Michael on this excellent result.
Attorneys: Michael R. D’Lugo
Wicker Smith recently prevailed in an appellate matter heard by the 11th Circuit Court of Appeals.
Our Melbourne office represented a national retail warehouse chain in a premises liability matter in which Plaintiff slipped and fell on a crushed grape that was located in front of the register line, fracturing her patella in the fall. The case was litigated in federal court and summary judgment obtained after arguing that our client had no actual or constructive knowledge of the grape creating a potentially dangerous condition on the floor. The Court entered an order granting Final Summary Judgment in July 2024, after which Plaintiff appealed to the 11th Circuit.
Michael D’Lugo of the Orlando office handled the appeal, filing a detailed answer brief that refuted Plaintiff’s arguments, and the 11th Circuit entered a Per Curiam Affirmance upholding the District Court’s Summary Judgment ruling on March 5, 2026.
This was a difficult and contentious case, and our client is glad to finally have it resolved. Congratulations to all on this excellent work.
Attorneys: Mary J. Street, Richard E. Ramsey, Kyle Leigh Schmitt
Miami Partner Mary Street recently prevailed in an appellate matter in Florida’s Fifth District Court of Appeal, affirming a defense verdict obtained by Jacksonville Partners Rick Ramsey and Kyle Leigh Schmitt, Esq. in Flagler County, Florida.
The underlying case was a medical malpractice matter against three physicians alleging the failure to diagnose and treat the aspiration of an iron pill. Despite a contentious trial in which Plaintiff’s counsel raised a 𝘋𝘢𝘶𝘣𝘦𝘳𝘵 challenge to a defense causation expert, Rick and Kyle obtained a defense verdict in July 2024.
After Plaintiff’s Motion for New Trial was denied, she appealed to Florida’s Fifth DCA. She argued that the trial court erred by denying her pretrial motion for summary judgment, by allowing a defense expert to recreate an iron pill aspiration and use a simulation as a basis of her causation opinion at trial, and denying Plaintiff’s request for a 𝘝𝘢𝘭𝘤𝘪𝘯 instruction.
Plaintiff’s Initial Appeal was filed in February 2025, and our Answer Brief followed in July 2025. Almost a year later, in late June 2026, the Fifth DCA issued a Per Curiam Affirmance of the trial court’s rulings and granted our motion for appellate attorney’s fees. This result triggers a Proposal for Settlement, and our client will now seek fees and costs through the trial and the appeal.
Congratulations Mary, Rick, and Kyle on this excellent result.
Attorneys: Richard E. Ramsey, Jessica L. Gross
Jacksonville Partner, Rick Ramsey, and Miami Partner, Jessica Gross, recently prevailed in an appellate matter considered by Florida’s Fifth District Court of Appeal.
Rick Ramsey handled the underlying case, a premises liability matter for a national fast food chain involving allegations of failure to properly warn of a dangerous condition and failure to properly maintain the premises. The Plaintiff slipped on an area of the floor that had been recently mopped by a store employee. A bright yellow wet floor sign was prominently displayed in the area. The Plaintiff initially denied seeing the wet floor sign but later tried to correct her testimony when the store video proved otherwise. The Plaintiff argued she was trapped and had no other choice but to traverse the wet floor because it was the path to the exit. The Court entered final summary judgment in favor of our client in July 2022.
Jessica Gross handled the appeal. The Fifth DCA affirmed with a PCA and provisionally granted our motion for attorney’s fees.
Proposals for settlement were served nearly five years before the entry of summary judgment, triggering our right to seek recovery of attorney’s fees.
Congratulations Rick and Jessica on this excellent outcome.
Attorneys: Michael R. D’Lugo, Taylor McLeod
Orlando Partners Michael D’Lugo and Taylor McLeod recently prevailed in an appellate matter heard by the Florida Sixth District Court of Appeal.
The underlying case was a medical malpractice matter that arose from a stillbirth at 37 weeks. The subject incident occurred in 2017, and the case went to trial in Orange County in 2023. Despite Plaintiff’s counsel relying heavily on sympathy and asking the jury for $20 million, the trial resulted in a defense verdict for our client hospital.
Plaintiffs appealed, claiming that the trial court abused its discretion by striking several of their nursing expert’s opinions, and that the exclusion of those opinions amounted to a denial of Plaintiff’s due process rights.
The appeal process was lengthy, and involved a Court-ordered mediation and oral argument. Finally, more than eight years after the subject incident, the Sixth DCA issued a Per Curiam Affirmance of the trial court’s ruling.
Congratulations Michael and Taylor on this excellent result.
Attorneys: Mark H. Ruff Jr., Nicholas S. Seamster, Michael R. D’Lugo
Orlando Partner, Michael D’Lugo, and West Palm Beach Partners, Mark Ruff and Nicholas Seamster, recently prevailed in a matter heard by the Florida Fourth District Court of Appeal.
This was a professional negligence claim brought by a contractor against our client, an engineer, stemming from the construction of two sewage pump stations. The Plaintiff claimed that our client negligently designed and negligently administered the project, causing the contractor to fall behind and to be improperly terminated by the city that had originally commissioned the project. The Plaintiff sought over $12 million in actual and consequential damages.
Several counts of the Complaint were disposed of via summary judgment prior to trial, and Mark Ruff and Nicholas Seamster tried the case on the remaining counts in Palm Beach County, Florida, in February 2022. Although the jury awarded approximately $100,000 in damages and split the liability equally between the Plaintiff and our client, we moved for a directed verdict which was granted post-trial.
Plaintiff appealed the directed verdict in June 2023, and Michael D’Lugo filed our Answer Brief in October 2023. In early June, the Florida Fourth District Court of Appeal affirmed without discussion on all issues related to our client.
Orlando Partners, Michael D’Lugo and Kurt Spengler, recently prevailed in a matter heard by the Florida Fifth District Court of Appeal.
The underlying case involved the trial of a trucking negligence case with a husband and wife as co-plaintiffs. There was a total of nearly $780,000 in boardable meds at the trial, and Plaintiffs’ counsel asked the jury for $4 million at closing. The evidence showed that our insured truck driver was moving at very low rate of speed when the collision occurred and as a result, the jury found no causation between the collision and Plaintiffs’ subsequent medical procedures, and returned a complete defense verdict in October 2022.
Plaintiffs filed their Motion for New Trial after the verdict, claiming that the jury disregarded part of the jury instructions before rendering their verdict. That motion was denied by the trial court, and the case was then appealed to the Fifth DCA. In our Answer Brief, Mr. D’Lugo argued that Plaintiffs had no legitimate grounds to request a new trial, as there had been no error on the part of the trial court. On February 4, the Fifth DCA issued a per curiam affirmance of the trial court’s ruling.
Congratulations Michael and Kurt on this great result.