Petition for ReHearing — Young v. Cargill

IN THE SUPREME COURT OF THE

UNITED STATES

() PISTTTION FOR A WRIT O}

RIIORATL TO THhk UNITED SIATI.

COURT OF APPEALS FOR THEs

Vig tT TION Od

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QUESTIONS PRESENTED

ViIu. PHIec UNITED STATIS FILE

VDDITIONAL CHARGES AGAINS |

CARGIILA FOR VARIOUS OTHER

IWNVIRONMIENTAL VIOLATIONS?

DOS CARGILL IWMPLOY

UNDOCUMENTED WORKER:

PURPOSELY TOAVOTD EMPLOY

LIABILITY, THUSLY

DEMONSTRATING A }

PATTER OF ABUSK TOWAK

WOKERS INJURED ATT

PROC ING PLANT,

“MAT Ie

PONSIBIEDTDS

Ye EGMI TT Ok THs LAW?

TABLIE OF CONTENTS

QUESTIONS PRESENTED

LABLEIE OF CONTENT: dj

TABLA OF AUTTHORETINS CET) iii

TABLE OF APPENDICK,

IN PRODUC TION |

REASONS FOR GRANTING

Rh ARING/RIECONSIDICRA'TION |

The Courts Decision in Bielunos

Misty Dawn Inc. No.09-2048 in

4 . A

the burst Circuit Court of Appea

and Barnett v. Bank of America

No. $1009-1326 in the third district

(Court of Apype als of the State of

hlornida wa gecided hortly alte

Vrit was dened in the mistant

Casas } {

L hier me mostantial grounds te

rearity Uda Vrjit that were not

pore hous pore ented namely

Lig by} 01 ‘rial p13) 1a)

Gnvironmentatl | 1 |

(VOONCLUSION

TABLE OF AUTHORITIES CITED

sarnett v. Bank of America No. {109

1326, Third District Court of Appeals for

the State of Florida... (,

Baum v. Helget Gas Products, Inc., 440

Mood 1O19, 1022 (&th Ci

ZOOG) 1 /

Siglunos v. Misty Dawn Ine. no.09%°> 204%

(he United States Court of Appeals for the

hourst Carcuit ... ay |

Bourassa v Busch 929 So.Zd 552

oft ee | |

Mapinoza v Cargill no: O9- EIEIO Tr the

UJnited States Court of Appeals 5!

Circuit 1G

Gates v WR Grace et al case no? #08 «

2560-t-277TBM United States District

Court for the Middle District of Florida

Tampa Division.......... error |i

In RE: Cargill Fertahzer OGC Iile No. 04

161%; DEP 04-1575 September 10, 2004

State of Mlorida [de partinne nt of

lonvironimental Protection iZ

Ney Leasing Corporation Inc. v. Cargill

Meat Logistics Solutions No 2:09-¢ev-01051

in the United States District Court for the

Northern District of lowa, Muastern

Division ... . Pan Pistia 1

United States of America v Cargall Ince

No.99- 1875 In the United States District

(Court for the District of Columbia L/

United States v. Cargill 10-2752 |:

TABLE OF APPENDICES

4

\ppendix A* exhibit CAROOI2Z1

Appendix Be exhibit CAROOO2G

Append ©: lexhibit CAROOOGS

lexhubit CAROOOS4

exhibit CAROOOGE

Appendis 1)

\ppendix ft

Appendix I; Article from Lakeland Ledger

Dated December 17.200]

Appendix G- Bielunos v. Misty Dawn Ince

no O09 204% the United States Court of

Appeals for the lurst Cirecuat

Narnett v Bank of America no. SDOO- 1371

Third District Court of Appeal for thi

tate of Florida

PETITION FOR REHEARING

Petitioner respecttully requests that this

court prant rehearmy/reconsideration of

its order dated October 4, Z0O10, which

denied certiorari, and that the Court now

prant certiorari

INTRODUCTION

Qn December 29, 2001, at approximately

Zacm., Ms. Lorene Young was injured in

an anhydrous ammonia gas explosion at

Cargill’s citrus processing plant in Avon

Park, kl. More than thirty employees

largely Hispanic, were taken to local

hospitals in the area for treatment

Anhydrous ammonia, im use for

refrigeration, was stored in large

ammonia receivers and piped throughout

the plant.! After the accident, top plant

Officials met to discuss an action plan to

Climuinate amionia reef valves trom

reheving at ground level. According to

handwritten notes of a mecting held with

administrators Ray Spurlock

(Maintenance Manaper),

Pete (pope madix A exhibit lab le i ( AROOLY I

Larry bladden Genvironmental Health are

Safety Manager), Mike Loudermilk

(Safety Supervisor) Mike Maloney CCitru:

lorce Safety Supervisor), Bill Brey

(Director of Operations), Hiram Saylor

(Refrigeration Maintenance), and Gary

(CCutral (Citrus Force-Supervisor), a

uction valve had been closed prior to the

acadent. They discussed the valve

bnilarity toa water hose valve and how it

could have closed madvertently. When the

evaporators operator turned off thi

essence umts. the rehet valve mnimediately

closed. With nowhere to escape, pressure

built up anside the pipes and triggered the

release of ammonia by the rehet valve

The notes from the meeting indicate that

the relnef valve was vented to the

atmosphere ail round level.< ‘The de BS

of the reheft valve vent should have been

piped ata hivher elevation AIso

according to other documents, the weather

was such that the conditions were weal fo

Accping ammonia Vapors Gown at thie

round if Vt

dCAkKOooozé

. OOOGS

‘The hand written notes also indicate that

the warning system was madequate and

qdiscu Cd another facility : Wa ranine

tems, Citrus Saco which had an

ammonia spillon December 14,2001.4

OSHA 1 ued a citation on dune 2%

YOO? that inclided reference to the

December 29, 2001 accident and

tates im part: The employer did not

conduct relnigeration proce to

adalyre aed at gant Chae

following: The hazards of the

prrace lone ineering and

hdministrative control appli ifyte

tothe hazard and tha it

bniterrelationships such a

appropriate apphcation of

detection methodolovsiu ce

early warning of release

COMSeGUCTICS Of failure Ol

eCnLvineeriny and admin Trative

control facility siting; human

LACLO!I a qualitative CValuallon

Olarangve of thre Po GSible satet

L tie sith eltect Ol farlure Ol

femphasi added)

\n Incident Investigation Report als

indicated that some of the basic cause

contributing to the accident were the

Chie ricer: ar plage and mamte nance

Ot thre suction valve

RIGASONS FORK GRANTING

RMHERARING/RIECONSTDERATIO!

A\ petition for re hearing upon demial of a

petition for certiorari is permitted when

limited to J INbervening CIrcumst

a Substantial or controlling ettect or t

other substantial grounds not previous!

presented beuile 4 Z ude Ol th

lpreme Court

PLACE denial of Mo Young Writ thre

followings intervening and cont LIT)

Canes Wer decided

Qn October & ZOO. the United Stat

Court of App als forthe Farst Circuat

rendered a deci MQoT) itd Bielunos v Misty

Dawn Inc. no.00-v!

OPPO | annexed nerel

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pee us

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.

C*Prbbetl I

rary tha

bove upport the di

Hot lO pare do

\Iso atter writ

CASE ON CICTOHDE?)

District Court of

blormda render

Bank of

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called ft

rated fire wall to be bualt from tloo

to ceiling Which would separate tt

Temporary banking center trom thr

CG} LrPuction area Vecordineg t > thre

testimony of the plarnatitt Well

UW Othe! Cinployes the ow itl Ww

not built an accordance with the

planus, did not run up to the ceil

and did not completely parate tt

emporary banking center from the

l CPuction area

Vecording to the depositro thie

pe Lil ay Ween the I Tructro

it and thi Le] MOT ETSY I) Lint!

ter allowed a Liat if

au tL, Odo! and tun

nh aday eat COMmMputlel nd tabi

* oe a covered by i thar raver Oo]

bul l neha ( ete {

bers partic Ih elnp

vere breathing ¢ d tum

t le t precarat rial | 1)

BEGsJ ‘Thy I , I wa

Phice bosanike Gemed that any of the air

from the construction area entered

the bank's temporary facility. The

bank arvued that at responded

properly to Chics miployes complaint:

and thatas of December 2002

piterion air testing revealed that the

airy Guality in the building wa:

Nithinn a normal ragnpe

The court concluded that the cianployes

“onpaved in conduct which was

thstantially certain to result in injpury of

deiithi This case questioned “whether a

reasonable person would understand that

thie Grployers conduct was: ubstantially

certain to result in anyury or death to the

Cin ployce Under this approach, the

@inployers actual mitent as not controlling

lovidence of the welef valves dangerous

location ain the mpstant case) is currently

an unaddre edassue of material fact

relevant to the intentional tort exception

to blondas Workers Compensation

Craployer gaimianaby Chatase

Lt)

bodice bibeenbiomal Lor { Cplion appli 1]

reasonable person would view as

“substantially certain to result in wayury

or death ffoure it ffsasch

hntertarinment.$ 929 So.2d4 b52. 556 (Z0O0G6)

rouny Was required bo ace aharea shi

unaware would certaimly Expose her

to moxious levels of animonia il the rei {

briptunse resulted from Carvill failure to

(1) { | ‘ Ldie bao ial fat «yf tiie y ¢ ag | Yella vs Ld)

Criployer Working in Close proximity to

lhe relriveranl YSlein and to adhere to

Gngunecring design that would allow thie

relicl valve to fulfill their purpose sately

1 die bbCLigy) i} Ve bhnadvertent place Hier gil

also dmplicate a disregard Jor the seriou

ity of tizargn ot mishandling could

QUISTIONS PRESENTED

WILL THI UNITED STATES FILE

ADDITIONAL CHARGIOS AGAING |

CARGILL FOR VARIOUS OTHER

ENVIRONMENTAL VIOLATIONS?

fn the United States Court of Appeals for

the fight Circuit the povernment through

the Mnvironmental Protection Agency ha

filed suit against Carpall, In United States

v. Carpall 10-2737 the vovernment issued

( argaull Vabiow Citations for au pollution

and (arpill has not comple do with

vovernmcntal regulations, and since some

of the violations start as carly as January

1997 and litigation is in propre it)

feasible that the United States may

“mend their complaint to include

violations of OSHA re ulations on

( aryalls bdorida plants

The courtaun In Rk: Cargill Fertalizer

tated On September 5, 2004 Cargill

reported the breach of a pypsum dam

Within the System, resulting an the

discharge ol partially neutralized o1

Untreated proce wastewater nto water:

Ol the State

Cargill ha mamaveda Loops Ula PiGd\

and temporarily play the breach

hilowever, the oystem continue to be in

the cmusttreat) trivver statu peciied in

VO CVPR 418. TS and Chapter 62-672 of the

blorida Administrative Code with proc

wstewater levels at or near thi

miaxXinium emergency Elevation Phese

emergency levels Cannot be sustamed ove

long period of time without

compromising the mbeyrity of the dam

fracture. Cargill's third-party enpinee)

has recommended that levels wathin

Cargill's cooling pond be lowered as OOn

po btole lo prevent a cata trop lise

failure resulting in severe harm to human

health and the environment lhe

department of luivironmental Protection

entered the following order Gn part)

Cargill i hereby ordered to take

bnmedimte actions to stabilpze (liith zil

{hie bacility fo preventa cata Lropthia

release of untreated wastewater trom thie

baciity. Action to permanently Stabilize

L pie aica bicald doe completed a Creat) «il

Cargill shall submit plaas within 24

hours of the time of rec Iptl ol this Order to

three De partment for review and approval

to mneutradize a miimum volume of LOO

miitlion gatlons of process wastewater with

caustic soda, lime or other suitable

neutralizing agent im other compartinent

bi) the cooly pond or othe pods Gob sale

Any actions taken by Cargill under tha

Phomediate Final Order shall not be

construed to limit the Department’

exereme ofits cntorcement

authority (nor shall Cargvilbcause

damave to natural resources. di thy

United States District Court for the

Middle District of Florida ‘Tampa

Division, Gates v WR Grace et al@Cargill is

nonamed defendant) case mo: 8:08 ev 2560

(277 BM Mr. Gates, the prdccanital cull £¥ 4 d

that Cargill and the other defendant:

(successors dn interest) neglipently

released and dis harged COX

Contaminants into the pround waters

eucpuunde rsystem, whi i Spree ad bile Nir

Gaates well which he used for drinking ane

cooking, Mr. Caate: also alleged threat

Cargill released and discharged toxr

contaminants mto the am and soil apon

bia Properly

DbOKS CARGILE LMPILO)

UINDOCUMEN TIED WOKKTR

PURPOSELY 'POAVOLD IEMPILAOSA TK

LIABILITY, THUS)

DIEMONSTTRATTING A SYS TIEMA TH

PATYRIERN OF ABUSE TOWARDS TT.

WOKERS INJURED AT TE

tbindocumented WOPKCE Opie WHOL We

bayuread i the ¢ y plo ron of Decembe

OO] Pia tha 2 €FIYCUIL COME O! \pp

the Case of fOsp moze \ Cargill hae. UI

eewae wit picanitall cal oO Worked th

IS CARGH hid bYOTEMATH

VVOTLDANCEE OF RESPONSIBILITY A

rORM OF CONTIEMPT OF Till LAW

On October 6, VO the Ulnited Stats

Distret Court for the Northern District of

lowa, Mastern Division Ney Leasing

Corporation Inc. v. Cargill Meat Logistics

Solutions No 2-O9O ev O1L05 1

Ina contract dispute Cargill wa

demied summary pudginent, the court

stated “Summary judgment is no

pp rop reat if the nNon-moving party can

Sel forth specity fact by attdavait

depo ition, or other evidence showing i

Peruiie issue for trial. Quotihy Beau \

Helget Gas Products, Inc., 410 bkoSd LOS

lOve? th Cir. 2ZOOG) Phe court in Ney also

tated \ party's entitlement to plead

alternative theories of recovery should not

be confused with the election ot remedi

riile Phos case is set for trial on

November 8, BOLO. Inthe United State

District Court for the District of Columbian

the courtain United States of America vy

Cargall Inc. No OO- S75 the court ordered

Cargill to divest interest i grain clevator

around the country based on the

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BIMLUNAS v. MISTY DAWN INC

Wojciech BIELUNAS, Plaintiff, Appellee,

v. F/V MISTY DAWN, INC., Defendant

Appellant

No. 09-2048

October 08, 2010

Before BOUDIN, GAJARSAand

THOMPSON, Cireuit Judge

Joseph A. Kegan, with whom John David

iat at 1 | and be Sail) &. K at \ Lula? WETC OY])

?

brie fol appre lant JO eph S mtace \ with

Vhom James P. dacobsen and Beard

Lacey & Jacobsen LLP

Ap) pre lle

Tha Calo according to Woy tel ee

Bichlunas aus about life-altering pain

aboard the F/V SHA WATCHER |

Miclunas had his right foot crushed in a

ehastlhy accident An orthopedi urgeon

Vorking as a commercial fisherman

aid it looked hike someone had taken a

ledgehammer to Bielunas's foot. Hi

livelthood lost, Bielunas later sued the

( el's owner, F7V Misty Dawn, Ine

charging Jones Act nevlivence,! ship

unsea vorthine and a right to

mamtenance and cure.“ A jury returned a

verdict in Bielunas's favor, and the district

judyve entered padre nv agalnst Misty

Dawn for $2,307,690. In this arena, Mi

Dawn criticize the district judge tor

admitting certain evidence and denyin

motion for new trial or remiuttitua

Detecting no hint of reversible erro!

affirm the jyudgyment belov

Backeround

W pre ent the tact in the hieht most

flattering to the jury’ verdict. see, ¢

Whitheld v. Melendez-Rivera, 431 I .3d ]

(ist Cir. 2005). Bielunas emigrated from

Poland to the United States with hi:

family in 1995, eventually settling in rural]

Pennsylvania. He had worked on fishin

Doatl before leaving Poland, and he

became a commercial fisherman her

hrom 2005 through 2006, Bieluna

worked tO} Mii LY Dawn a Ma cil hu ev

corporation, on its vessel, the SILA

WATCHER

Ssalety was hardly the watchword for

Misty Dawn's conduct Phe COMpany J LCi ¢

no real effort to ensure that at employee

complhed with accepted satety tandard

Viisty Dawn had some satety guideline

but they were not posted anywhere on the

LA WATCHER. Instead, the company

rehed on word-of-mouth, with owner hip

pa inv safety concerns to the captain Who

dd thie mon to the crew. But

there |} ome dispute whether ownership

ever did thi

‘To make the \ a protit ibple

possible, Misty Dawn stored clam ci

the walkway: With the walkway

blocked, crew members looking to

Uta hip had LO idle Wong al thin

unguarded ledge overlooking a nine foot

drop mito the cargo hold or amble over a

convevor belt. But the conve yor belt w

nota realisti option because the belt

quite lippery and the \ tem lacked

adequate handrails, so the crew Gre

the « aptain) opted to shimmy along tha

hatch ledge Appare ntly no one told them

not to do thi

‘That brings u

help close the hatch that «

hold, Bielunas had to indic:

crew member when the ce

proper posilion a wire cable ¢

hydraulically" powered machine would

haul the hatch forward along the ledg

[deally, one would p>! rform this job by

tanding on the designated walkways. But

because they were bloc ked Mieluna rode

abop the closing hatch cover-that is how le

and others had done it betore, and no one

had ever told him to do it differently

Unfortunately, he his balance

Lepped onto the Pave keep from falling

bhite Ut] cargo hold and got hh

caught between the cover and a

protruding prece of metal. “Stop

Mielunas yelled, hoping to get the

ittention of thi Caiman operating the

th \ drawl ally powered Tii<id hine

could feel steel pre

}

i foot. Jesh and muscle

olf the bone

bieluna

me into him, crushing

were tripped

raping hole. Blood

Vas everywhere

Phe Coast Guard airlited Bielunas to

hospital on Cape Cod, where a doctor

periormed a series of emergency sury

>

Phe doctor noticed that about halt of

bone material was dead. Hie

ad matter and a

removed the

mnilicant amount of

Pi

ad miu cle and U1 Li¢ LOO but ay could

the wound. Iventually, afte.

two months, doctors sealed the

‘ning, but Bielunas's toot } Lill

heured and the damage 1s severe

Pllicil and de rpenerative \ if thi

were not enough, Bielunas walks with

| ronounced limp and hy alte I'¢ d Pail

triggered back and knee problem

Mieluna ‘rr be able to return te

form of hard work. His poor english

highly unlkely that he will

|

abl to do office Ol clerical work

thi We yniy Kind of

‘ mployime nt that a person with his new

phy: it al disability would be capable ol

performing, Bielunas will likely never be

able to work again-he can even cross-oftl

pizza delivery and security guard from

any list of potential jobs because hi:

mangled foot affects his driving and

Ability to patrol a Site, LOO

Bielunas's total medical and economi

damapes approximated $762,000. In hi

opening statement, Bielunas's lawyer

pushed for a $2,500,000 damages award

Which he upped to $3,328,767 in his

closing. The jury returned a $2,775,000

verdict against Misty Dawn but also found

Pielunas 15% ¢ OmMmparatlive ly negligent

hactoring in the 15% figure and an

arreed upon set olf between the partic

the district pudge entered a $2,307,090

jidvment in Bielunas's favor. Misty Dawn

moved fora new trial or a remittitur

Which the district denied in an

LiTie xplained orde)

With this background in place, we turn t

the lie presented on appeal

highhehting turther facts when needed to

put Mi ty Dawn: claim Into propel

pective

lvidentiary | ue:

Misty Dawn contend: that the district

judge erred in admitting plaints ¢ x hibit

2 and Lawson Bronson’: expert

testimony. Neither claim has traction

Plaintiff's exhibit 32

Phe protes ted exhibit 1s a : taged photo

(apparently taken by a defense expert) of a

deckhand holding a wire and s idling along

inine-inch hatch led pe as the SEA

WA'TTCHE R's crew frequently would

Visty Dawn argues here, as it did below

that the exhibit is irrelevant because

lsieclunas was injured while standing on

the moving hatch cover-not while

traveling along the hatch ledge holding a

wire. This argument is easily disposed of

\ relevancy-based argument 1s usually a

» sell. The definition of relevance 1:

quite expansive: relevant evidence 1:

evidence having any tendency to make

thie Kistence of any fact that 1s of

COTS equence mpoOore O} les: probable Ser

Fed Rolevid. 40] | mphasi added). To be

relevant, the evidence need not

definitively resolve a key issue in the case

yy United States v. Rivera Calderon

Mosd 78%, 96-97 Cist Cir.Z009), cert

demied, 130 5.Ct. 1107 (2010)-1t need only

move the inquiry forward to some degree

ee 2 Jack B. Weinstein & Margarct A

Berger, Weinstein's Federal lividence &

1() ] O42] |b] (Jo eph M. Mecl.aughlin ed

2d ed.2010). Because this is a

quintessential judgment call, see Moral

Keheiano \ Rtullan, 378 F.3d 42. 57 Ust

Coir.2004). we rive trial yudge

considerable leeway In ae Ming whethe

the contested evidence satistfie thi

not too difficult-to-meet standard

reversing only on a showing of abuse ol

discretion, see, e.v., United States \v

pepulveda, 15 3d 1161, 1194 Csi

Cur. 1993)

Relevancy is not assessed in a vacuumeit

is gauged “in light of the underlying

ubstantive law see Koy v. The Austin

Cio., 194 F.3d 840, $43 C/th Cir. 1999)

here, Jones Act negligence and ship

unseaworthiness. A Jones Act shipowne)

must see “to the safety of the crew

Koehler \ Presque Isle Transp CoO ] 1 |

K.2d 490, 491 (2d Cir.1944) Crank, J.). A

crew member's burden of proving

causation i: “featherweight, meaning

liability exists if the shipowner'

“neglige nee contributed even in the

shghtest” to the injury. lerrara v. A. & \

I): hing Inc., 99 FLSd 449, 4538 Cst

Cir. 1996) (quotation marks omitted). Also

“a § hipowner must keep the ship its de | :

passaveway equipment, etvce.-in a

eaworthy condition and must use sate

work methods, too. See id. And a

hipowner 1s responsible tor

unseawortlhiness-imduced myuries even if

not negligent. See id

Ifa picture speaks a thousand words, thi

one spoke plenty, giving context so the

yury could better understand the parti

actions. Again, the photo showed a

seaman inching his way along a tiny hatch

with no guardrails while lugging a

wire-an unacceptable practice Bielunas'

expert said, which Misty Dawn turned a

blind eye to and which highlhghted Misty

Dawn's cavaher attitude toward satety

The photo also showed a ship with blocked

walkways, which further bolstered

bielunas's theory that Misty Dawn failed

LO Pron ide Aa s ate deck for work Or) the high

eas. Misty Dawn talked a good game

about how crew safety was a top concern

but the photo suggested otherwise. Seen

in this light, then, the photo tended to

make Misty Dawn's negligence and the

hip: unseaworthines: more probable SE. E

ge nerally DeCnoia \ LJnited States fine:

Co., 304 F.2d 421, 423 (2d Cir. 1962)

(holding that a cluttered deck constitute

Jones Act neglgence and vessel

unseaworthiness); Bonnewell v. United

ates, 1/0 F.2d 411, 412-13 Ath

Cir. 1948) Gsame)-which is all the liberal

relevancy standard requires, see, e.g

lacobucc: v. Boulter, 193 I’.3d 14, 20 (1st

Cir. 1999). Consequently, the district judge

did not abuse his broad discretion in

admitting plaintiff's exhibit 32

bronson's testimony

Also sailing wide of the mark is Misty

Dawn's claim that the district judge

stumbled in admitting Bronson‘

testimony about the means of traversing

the deck, the danger of obstructing the

walkway: and othe. safety problem: On

the SKA WATCHER. Misty Dawn eall:

this testimony irrelevant and says 1t:

admission atfected the verdict (Misty

Dawn does not contest Bronson’: expert

credentials)-which means we apply the

abuse-of-discretion standard. See, e.g

Pages Ramirez Vv hteamire yf (7,0onzalez OUD

Kk oSd 109, 115-16 Uist Cir.2010). Again

that standard 1s hard to satisfy, and Misty

Dawn cannot satis fy it here

bronson's testimony discussing the

meaning and significance of the staged

photo, the dangers posed by the open

hatch covers and the missing conveyo)

belt handrails. ete.-went to matters of

consequence: did Misty Dawn provide

fielunas with a safe work place, and wa:

the Sk A WATCHER seaworthy? Misty

Dawn protests that Bielaunas was not hurt

While sidling along the hatch ledge Ca

Misty Dawn-accepted practice that

Bronson condemned), that only one cove

was open when tragedy struck, and that

the missing handrails played no part in

the mishap Ggnoring that Misty Dawn

had faulted Bielunas for not standing on

the conveyor belt during the hateh-closing

episode, a ridiculously unsafe suggestion

Bronson said, given the lack of handrails)

tut this evidence gave the jury a proper

frame of reference for asses: 1nhy the

parties’ competing Claims, so itis relevant

pee Kaipin v. Kelly, 184 I'.3d 67, &1 Cist

Cir. 1999). Misty Dawn could and did fight

tooth and nail to undermine the evidence'

meaning. But once relevancy ts found

complaints of the sort. Misty Dawn

pursues go to the weight, not the

admissibility, of Bronson's testimony

UJnited States v. Schultz, :

416 (2d Cir.2003); United ¢

Diaz, 878 F.2d GOS, 615 (2d Cir. 1989). The

upshot of all this is that we do not see

anything close to an abuse of discretion

here

The New ‘Trial/Remittitur |:

Pra ats post trial motion, Misty Dawn

blasted Bielunas's counsel! for suge

damage award in his opening :

($2,500,000) and closing argument

328,767), saying counsel's Comment:

uaifairly influenced the jury and entitled it

toa new trial, Misty Dawn also contended

that the jury's ultimate award

($2,775,000, constituting roughly

$2,000,000 in non-economic damage

whichis the crux of the matter) was

simply too large to stand. The district

judge denied the motion without comment

so we have two choice remand fot

clarification or address the issue head-on

Me reasonable byea: Ist upporting thie orde}

made maniest on the record “ United

States v. Podolsky, 158 F.3d 12, 16 Cst

Cir. 1998); see also generally Presley \

| nited hotate: Posta Nerv mp oe | if /

173 (2d Cir.2003) (noting that “IM hile i

written explanation of a district court's

basis for denying la new-trial motion] ij

certainly preferable as an aid to appellate

review, a Separate written opinion is not

necessarily required when a district court

rebuff: the motion). We choose option AS

this instance

upyesting specilic damage amount

Misty Dawn did not object to the

pecilic-damage-award comme

Mielunass Counsel's openimy sti

and closing summation. Kather, it first

urfaced this issue in its new-trial motion

Phatas still an Unpreserve d challenge

however, So our review 1s limited to a

earch for plain error. United St:

Brandao, 539 I 8d 44

accord springer v. Henry

183 (3d Cir. 2006)

Plain Grror is one hard test to meet

particularly in civil tigation. See Smith

Kmart Corp 177 3d 19

1999). Plain error is (1) error which (2)

so clear that a trial judge should act

even without an objection and which G3)

aifect: the appellant’ substantial

rights-on top of that, even if the appellant

make this reé quire d showing, w need not

mtervene unless the error al:

semously impugns the “lairne

or public reputation of judicial

proceedings. United States v. Roy

30 (ist Cir. 2007) (quotation

omitted); see also Smith, 177 I

at 25; Nat'l Union ire Ins. Co. of

Pittsburgh, PA v. West Lake Acad., 54%

hid &, 22 (Uist Cir .2008) Consequently

Misty Dawn faces a st« ep chimb nearing YO

depree ultimately, that slope 4

mMnsurmountabl

Misty Dawn cits no it

banning lawyers from sugey

damage number to the jury stead it

ays that federal courts tend to let counse

make unitool- time arguments durimny

Winination (e.g., a luwyes tells the ju

plaintiffs pain is worth A dollars pei

month, o1 ar and then multiphe

plaintiff's life expectancy to get a

lump-sum figure). Bielunas's lawyer did

proposing a number and

MWe a proce through which the

puury could reach it.4

ome courts permit unit-ol-time

arguments, si » 1ECAaN he matter to thi

trial judge's discretion, and some ban thi

practice outright-though most court

particularly federal court

into the first two camps. See generally

Mileski v Long Island IMR 10., 499 F.2d

1169, J173 n. 2, n. 3, n. 4 (2d Cir.1974)

(collecting federal and state cases); Giant

ood Inc. v. Satterfield, 603 A

679-80 (Mad.Crt per App 1992) (same)

this Court, however. We forbid counse

from asking jurors to consider the amount

ofa party's ad damnum in crafting a

damage aw ard, see Davi:

Browning-kerris Indu: Ine

t) > /

bradle« New Iengvland, Ine

mn. Le : Deand we h

ited appro mvly a case outside thi

qircuit for thre po rnt that lawyer Ci

Late in Stuumimation the number thre

pUTOr hould award IO} pain and

uffering. Hee Davi BO } Ud at

(highhehting Waldorf mehuta 90) |

(23 Cd Cir. 1990)). Building on thy

foundation, we held ip an unpubl

Opinion that Davi preclude counsel tro.

requesting a paln and ulleriny dollar

amount in closing. Kimberly f Mat

Hitchcock Mem. Ho WS Hhitehecoch

Clinics, Inc., No. 93-1488, 1993 W

198O2ZG, at *9-10 Cist Cir. De

(unpublished). Consistent with thi

line of case district pudges in this circuit

have: LOpype qd lawye) Wom doing just that

ee Wilson, 250 F.8d at 23 n. 25 ee al

Pe rh rally Budet-Correa \ { nited Parcel}

mery S22, I Hupp 2a 139. 141-4

(D.PR.2004) (discussing and applyi

Davis and the like). Con equently

measured by Ou! precede ril We CON

that the district pudve here made

mistake, and that the mistake 1s obvjou

,

enough But, again plain error require

more the mistake must al » bye pore percha

ma ense that there J a rensonabt

probability (not WuaISU a trie (ore tical

po ibility) that it affected the result. and

the result must be unjust, too. See Unite

Leate \ Viareu fou 3.71 ata, 104

(2O 10) (+f al QO United State Padilla

115 8d 21), 225 CUst Cir. 2005) (Boudin

().J., concurring) (en bane). This is where

Viisty Dawn gets tripped up

ie) Lartel we are not Convinced that

thal WAS a Palle cChanviny crrot ()]

[Jnited States v. Taylor, 54 I. 3d 967. 9%

(Ist Cir. Lodo) (stre Ing that the

plaincerror doctrine LOCcuse (3)

blockbusterl ]” errors) (quotation ma)

omitted). We question whether Misty

Dawn can show that it 1s reasonably

probable as Oppo ed to merely

po sible-that the jury would have tixed

different damage figure absent the

unit-of-time breakdown. That the jul)

found Bielunas 15% comparatively

neghpent as opposed to the 5% his lawye»

had argued lor suggest: that the jury did

not blindly adopt COUNSE] analysi sul

A) ¢ need not dwell on thi: ] Lif Pee

Johnson v. United State vs Oe Be. 1]

169 (1997) skipping over the third

component of the plam-cerror test and

ce ( hdany Live Caist (oT) tye fourth pron r)

} iyuimMent

affected the outcome

myustice her

@ Oub lias iit

ed of his livelihood (det

into below)

“ard is intoler:

nmeede (| and

bLabemenyt ana argcuine

not evidence and that the veraict

reached on the ( hdence alone

COUTTS not object o

mstruction on the unit-o

delhberating 1 ¢ a bit, the yr

if Bieluna MM rcou

upgested award amount

oning used ich them

attorne

mind the jurors that urgument

Ot ¢ hence in the case and that

lo decid the matter “on their o

idge apreed and told the jur'

r

presume that you are referring

ylaiptiff counsel's arvument to

laid out I

TTC Tilo qe

iit

toate | i pst You are

remembet \ ‘ the evidence w:

What coun Wi end WOrINE

to remind you ol what the eviden

md put his wnpterpretation betore

hy could con baer il

LO thet Ye

member the «

Lructions

rot claim

\ Robin Ol) }

PAR Owe.

tain error 1s not

tandard, United

VAZQUEZ Molina

Cair.2004), vacated on other vr

U.S. 946 (2005), and nghtfully

4

parties from rolling the dice on a

erdict and then raising problem

appeal that could have been easily

Witha timely objection

LJnited State Jacquillon

) (Wisdom

dii (

ra

i }

Lil (

Sill

t(j

nen 3

i

4 i

I ul

} |

It

id

{ { ii

{ { lit

‘

ii] 4)!

|

a 4)

7 Asé

1) 1 >¢

A | ;

‘ YV ilit

i ‘

i i}

in hot, Misty Daw C2

PCCOMNOT f dan i CaW

Mp) ciyire OnAabh high I

| udre 10! not ordering

VO se thangs differen

nye ie Vu dama mito al

thie jun Hy -CONSEeEqGCuUeN

din extraordinal circ

eto Line pill C(ie¢Ccl I I)

Dia Palau, 463 } qd

(JOO fiat particular]

on Lrict pur pre WhO a\

{ Iden pla Ol retu

ard. ld it oteppiny

that ruiiny to? Pil ( Of]

1, revel i only ii the de

ie Wert burden Of pre

ted award } 14) | (

noch ’ 10 the coy} (

xr so Ingh that it woulda

mustice % permit 1 to Sti

hn mart omitted). This 1

Vill NOL Jeutl nadan i £7 ¢

Cause A think It to Fe

y¢ ii

mdi. |

ij)

AV if

r 4 i

itv

!

damarpe that could be ba ed upon the

evidence betfore the jury . Casillas- Diaz

1G | ia altos (quotation marks omitted)

here is no mathematical formula fon

determining the monetary equivalent of

non CCONnOMIC yuri pee, c.v., lLimom

UJnited States, 579 F.3d 79, 105 Cst

Cor.ZO09). But the district pudge told the

puro. Without objection, that they cou]

rany physical, mental, o1

emotional pain Bielunas has suffered, 1

ulfering, and will sulfer because of hi

VyVouNnd DWamarves must be reasonable and

not based on hunche the judve stre ed

but “no evidence of value’ is needed fo}

the intanpible myumes: in translating

decision into dollars, “you are not

dete ring value but you hould award

an amount that you feel will fully and

fairly CO) prt nsate Bieluna 10! hi pra {

present and future mental distr and

ply: ical pain The) Lic then, 1

mescapably “lactl- bound (

Crasilla Diaz. 463 I ats. and the

Pact measured under the | ra] criveria

Outline qd above upport the a) Lrict yu

decision not to pare gown the award

Mmielhuna uffered unimaginable pain on

the Sit A WA'TTCHIICK, and pain clings to

Pb)d)) Lidl ,multicton hatch cover crushe

his loot, pulverizing a bone, fracturing

others in multiple places, and leaving the

whole thing a bloodied me: ‘The doctor

could not close the wound for the longest

time, and they w bil mnie VC! make him fully

better actually, things will only get worse

\nd the injury has exacted quite a toll

causing him to lose many of the thing

that made his life worth living. No more

vorking on a fishing boatcin facet, no mort

meaningful employment at all. No more

taking long hike with trends and family

Jo more doing certain chores around the

house No more helping neighbor with

home-improvement projects. All of thi:

has left him feeling powerle lost, and

depre ed. He worries about his future, he

lashes out at others, and lis marriage ha

ulfered, too. ‘Val Inge verything Into

account, we cannot say that the jyury'

award 1s unconnected to the evidence

CONSCIC NCE hoc} Ing, Or SO lavish that it

vould offend common notions of justice if

ib stands-so no remittitur 1s needed

Misty Dawn makes much of the fact that

Miclunas does not take pain medication

md had fractured the heel on the same

foot years belore aninyury that Misty

Dawn's ¢ xpert suggee ted caused many of

thie ime problems that Bieluna

Complain about now. None ol thi

changes our view of the case

Arain Micluna { <plained in

detail how much pain he had

hatch cover tore a hole in hi

much pain he ha: NOW -CONSL:

even though he avoid: pain |

medical evidence backs up Ini

chromic pain claim. As to the

hielunas never missed a day

because of that injury, a fact

cold water on the expert test!

Misty Dawn points to-testime

jury could, and evidently did

any event. Cf. Primus v. Gal;

ho3d 236, 245 (st Cir.2003)

Citing to Anthony v. G.M.D

Ine., 17 F.3d 490 Clst Cir. 199

Lyeacayoe riv. Sears, Roebuck &

126 (ist Cir.19%6), Misty Dar

argues that because we rejec

award: thie M4 W « hould do :

Lhnese cast oller no aid hor

they are 16 and 24 years old

which in this context makes t

particularly helpful” for com},

purpose see Whitfield, 431

( aying so with re pect Loa }

precede nt). for another thing

easily distinvurishable from thi

LUI

foot cit)

that pe

mony that

my tn

disbel

PANO

AY hire

1) and

Cn 78

JAATISOT)

it Md at

Anthony found a $566,765

pain-and-suffering award unconscionable

because the plaintiff's myury whi hy Welt

neither paintul Gelatively speaking) nor

permanent-did not “rend rt | him unable

to periorm any partie ular functions o1

ngage in any particular activitie lor]

otherwise interte re| with hi:

professional, recreational, or personal

hfe. Anthony, 17 F.3d at 49), 494-95

Laapen considered a $750,000 damage

award conseence shocking because the

plaintiff suffered “relatively mino)

Injyumnes, involving no continuing

disability’ (other than “a non-disabling

permanent scar on her lower back, there

was no evidence of any medical problem:

Whatsoever within a month and a half

after the incident). Laapen, 787 F.2d at

(34-36. Anthony and Laapen look nothing

hike this case, piven the huge toll

Biclaunas's injury has taken on his body

and mind

Misty Dawn also highlghts a boatload of

non-lirst Cireuit cases where lower court

deemed certain damage awards excessive

Measured against these cases, Misty

Dawn says, the objected-to portion of

sielunas's damapve award 1s legally

Uibbsu tainable Not 3) slmply =f howiny

that the damage award 1s generous in

comparison to other CGhand-picked) case

insufficient to warrant relief.” Correa

Hospital San Francisco, 69 I.3bd 1184

1198 Gist Cir.1995) Ceiting Havinga \

Crowley Towing & ‘Transp. Co., 24 }

1468-89 Clst Cir. 1994) (not

Sary to compare cases mvolving

similar traumas, dates and locations of

tral and evidence presente d)),; accord

Whitfield, 431 I3d at 16 (stressing that

we will not reyect a damage award “mere

because the amount of the award 1

somewhat out of line with other case ola

mmilar nature’) (quotation mark

omitted). Ultimately, we see no compelling

reason to override the jury's jadgment

AY i 4

Conclusion

lor the reasons arrayed above, we r

Misty Dawn's appeal and affirm the

yudpvment below in all respect:

hall bear its own cost

So Ordered

ROOTNOTI:

1 46 U.S.C. § 830104

A venerable remedy created to protect

eamen from the dangers of living and

laboring at sea, maintenance and cure

“refers to the provision Ol. O} payment lo}

food and lodging Cmaintenance) as well a:

any necessary health-care expense:

Ceure) incurred dunngy the period of

recovery from aninjyury or malady

LeBlanc v. B.G .T. Corp., 992 F.2d 394

396-97 Ost Cir.1993).

Because there was no error, we need not

consider Misty Dawn's grumble that the

admission of Bronson's testimony affected

the trial’s outcome, see Fed. R.Kvid. 1O8-a

complaint that turns in part on Misty

Dawn's claim that Bieclunas's counse!

weaved Bronson's “irrelevant” testimony

into his closing argument. Misty Dawn'

bref focuses on the evidentiary issue

(which falters, given how easily Bronson’:

testimony clears the low relevancy hurdle)

and makes no attempt to construct a

reasoned argument that Bielunas'

counsel's closing constituted misconduct

so our work on this is done. S

McCullen v. Coakley, 571 $.3 1G 7/, 182 &

n. 3 (ist Cir.2009) (deeming waived

arguments hinted at but not developed

and addressed to a particular theory), cert

demed, 130 5.Ct. 188) (2010)

1. biere isa sampling of what Bielunas'

counsel said Cagain, without drawing any

objection):Past and future physical pain

and suffering: Noting that there are 365

days ina year, counsel sugvested p22

lor past physical pain and

uiferinp $200,000 for the first year

(eiven the momediate “horror of thie

calamity) $50.000 for the second

and $32,000 for the third. Bielunas } )

years old counsel added, and 1: expected

to live another Z5 years, so “you should

award him $800,000 for future physical

pain and suffering because he's going to

live with that [pain| every day. Past and

future mental anguish: “T think the

mental anguish of this thing 1

conservatively pZ0 O00 a4 yea (

aid. “That's $20,000 a year for the last

three years and “for the rest of hi

counsel added, which comes to

{560 ,000.Past and future disability and

mconvemence? Bielunas's “past disability

Is permanent, counsel argued. “And I

submit to you that $33.000 a year’ is a

good number to cover “the impairment

and the inconvenience, which comes to

bIZ4 OOO

) The partie: also Dar OVE! whethe

Bbielunas's counsel told Misty Dawn's

lawyer in a phone call that the award’

“shocked both him and his client

not one whit of difference

counts is whether the award shock

ence Ut doc

CoOotLT)

Marlene Barnett, Appellant,

v.

Bank of America Corporation, Appellee.

No. 3D09-1326

iLower Tribunal No. 03-14301

Phird District Court of Appeal

State of Florida

July Perm, A.D. 2010

Opimion tiled: October 13, 2010

fot final until disposition of timely filed motion

for rehearnny

An Appeal trom the Circuit Court for

Miamu-Dade County, Ronatd lDiesnick, Judype

Krupoick, Campbell, Malone, Buser, Slama

Hancock, Liberman & McKee and Kelley B

Stewart and Robert J. McKee, for appellant

fhornton, Davis & kein and Daniella Friedman

for appellee

Belore RAMIREZ, ¢ and (OPE and

GERSTEN, JJ

Cin. 3

Page 2

Phis is an adpppcal Of a Stummary pu Pann Hit ini

favor of Kank of America Corporation based

upon employer immunity under the Worke

Compensation Law. The question ts whether the

plamtill Marlene Harnett is entitled to proces d

against the defendant Bank of Amesica on the

basis of the intentional acts excepuon to worker:

MpcnsauwOn MMMUAAY

In 2002, the plaintiff was the manaper at Bank of

Yimerica y Harbor Island branch. The banl

a tenant on the first floor of a building at

Kane Concourse Phe landlord decided t

building, and Bank of America

construct a new bali

first floor

Kank of America wished to Kee pal branch Opel

during the renovations. Ht constructed a

lcmiporary banking center occupying part of tt

preexisunp Spact Phe bank employes S wert

moved into that pace in May or June 2002

1 ine plan: called for a one-hour rated tire wall te

be built from floor to ce iliny Which would

parate the temporary banking center trom th

coustruction area. ACCording to the testimony ol

the plaintulf as well as two other employees, the

wall was not built in accordance with the plan

did not run up to the ceiling, and did not

complete ly se parale the lemporary banking

center from the construction area

According to the ae pos iions, the Opceniny

bctween the construction area and the femporary

banking center allowed a Constant influx of dust

odors, and funn

Pape )

rat hi day thie COmipulel and table were COVErcd

by aa ddan k hayel Ol du t. Jn luding CONCTCK dust

and fiberglass particles. [he employees were

breathing dust and fumes from plue, paints and

aint thinners was no operable au

i

conditionmmy system

Lccording to the depo Mon Willi several

weeks the plamnull and other employes tart

becoming thl from this ¢ K POSUTE With asthm

bronchitis, Sint problem nose bleed

headache and dermatitis. bught of the ts

employees mack Claims for lie th problem

According to the de po Mion testimon {|

plamtut and other employees contacted

executives trom Bank of Amer 61O Compl iit

Phe plaintll, as manaper, requ Gd that th

employees be moved to another locals (haat

the bank bring a trailer to the site to ho Ubi

temporary bank facility. The executive

these request because the branch had a

rat posit area Which the bank wanted to kee po}

forats customers. Phe plamtitl was ordered t

keep her employee: working at thr CXISTINO

eventually the bank brought mitans and a

cleaning crew. After employees bepan makin

workers’ Compensation Claims, the bank al

broughtin au purttiers and cooles Pdi

cmployees howevel kepl pellioy iCK. In

December 2002, the bank temporarily closed the

facility but then reopened i hanally in January

2003, the bank shut down the temporary cente!

and moved the employees to another stt

Pape 4

fhe plaintiff brought suit against the bank and

other defendants for impyuries she sustained. The

bank moved for summary judgment on the bas

of workel COmpcHnsauion mimunity. Phe bank

maimtamed that the firewall separating th

construction area from the temporary ban

facility reached all the way to the ceiling

partway as the employees testified. The bank

argued that it prepared its plans using qualified

design professionals and pulled the appropriat

building permit fhe bank denied that any of

ir fdrom the construction area entered the

mporary facility. The bank argued that it

i pond d prop rly to the employee Complain

md that as of December 2002, tntertor air testin

revealed that the air quality in the building

Within a normal range

In Opposition thie plarnteee re hed on emp

testimony outlined earlier in this Opmion

plamllt also tiled an athidavit OF plamatitt

environmental medical expert, Dr. Albert I

Kobbin

fhave reviewed the Matenal

Data Sheets of products that we

this deliciently ventilated structure whet

they worked

L tT have been taformed that they wer

exposed to daily, miuluiple hour exposure

ol concrete parliculates, tncludingy silica

varrous Construction fibers, mold spor

and volatile organic chemicals, tor which

| have reviewed the Material Safety Dat

Sheet

lhe Material Safety Data Sheets on

these products and my own } nowled gp.

and ¢ KPCrcnc with the other « ompound

yar

binary pud

ppeal

Ihe plaintt

Hdd SCOP of her employment

| COMpen MON provi

Oléctl Cmiployes Oy ii rid

the employe! bnomune & _ burn

PCR. Tne Oy. 2Gn Oy: OOD)

lhere 4 however, iy iHtechntIon: I cept

lo workers: COMpensauon tminunity., ba. Tt

intenuonal tort exception is applicable where th

Iiploye I hown to have erthes eXhubited ad

deliberate intent to impure or engapeld] in

conduct whichis substantially certain to:

injury or death.” Id. at 63

bra tha e ihe plarntibl resi

ees that t

twhich w

measured by in Ob] { Te! =

ae il ¢ ith

a Q)

ju hon 1 whether at | |

mderstand that tl CMIploye | CONaGUCE W

ubstantially certain to 1 ull in injury o1

tO th employes \ naci (his appro 1) tI)

Mploycl actual intent t not controllin

Phese principles have been reiterated in

takerman v. Phe Bombay ¢ ©

02-05

Phisis a mowuon for summary pudpment

th \ read the factual re rd in the light

1) Lt favorable to th piamititt is the noni

vw record is read in that light. a4

Clear that there are disputed issues Ob material

fact reparding th ubstantial certainty t

oO beer with, the bank a rts that there wv

temporary bank premuses trom the construc

ica SO that no dust or ftumes could enter the

temporary bank Quarle! bsutthatis ad iL

fact. Phe testimony of several bank cmploye

tates that the partition wall did not reach all th

way to the ceiling and was open at the top. Th

bank itself acknowledpes that it provided

idditional cleaning stat! and other devi {

correct the additional dust that was cntering tl

PECTIILISCS a COLIC ikon which Cis {

l knowledge that there Wa I) »cOMptle i

paration between the construction area and t

Piidh (

UpplIe! |

(Pid) advi

© GIsCOnUAU

| hazvardou

pro Cr contil

md accordin

ii Court

( i i i Phat

'

i nd rujed th

{

> Ti r

f |

() K I ‘ (

Hockis |

199Q) the plamtillt

a oyniypurr Prom inhatie

. | 4 i}

ttifitdl pteila vv if}

it¢ ral { ii} bitch)

11>) I ai rl it]

'

1 dhe i)

i (| 1] {}

1) Til | |

| 1) I

’

11) hic] |

'e potadd } ii]

Pmanul;

J { Ht)

pail ( | HoStahi

‘ F : | !

} | } dil y

pore pila {i 4

I il i } ! ]

alety equipment" Id. at 96-97. The burst

substantial cenaint y

rsed the ordel

Propet

Pyistmet held that the

fandard was met and reve

sing the « Omplainet

thatthe sub

MSH)

fantial certaint'

lt bears emphasis

landard apple where there i ubstantial

rlainty of either injury or death

is added). bhus the

been appr gin

lurner, /54

(

( ¢ Paplha

ibstantial ce rlamty test ha

ing a non-fatal injury, Cunningham;

2d at 259) (ankk byury), a

lisher: burnes

( LIVOLYV

Makeriman, YO!

Ivinge fatality

i} a Ca biive i

j be

Phe Dunk relr on McClanahan v. State, « '

95 ad | ¢ ZAM) S ) In that case the

mulls wer empl yees ol the lorida

Justice. They worked tn

Department of Juvenile

detention center which had been built

} Crake

the carly 1990: Phey alleged that there had

pence im the desipn and Construction of

Was Contaminated by

i levels ol moisture, nuldew, and mold

it J/O4. The plamull alleped r piratory

W ronyptul (it alh 8)

pire anna) Ube

mployer phe exact nature of the contamiunatror

1 ¢ tcl 1 mist Were nol pelled out 1rd Chae

lhe Second Distnact concluded that thr

( miOons AMounted to Claims Of me Plipe al

ict and that th sostantial Ccrtaimtly test had

tL bee a

bhie pi i dilles nificant! bine Clay

as nol

_ULTI

alfida

biditl

iy

)

KCEPCcl body

on the day of the mcidcent hon wa

grab the plamltlf's fingers, resulting ina strugpl

in Which the plaintiff's arm was severed at Ue

clobow. The Second District upheld the workei

Compensation iminunity, based on the tact that

fgusch Gardens had a

Pape 1 |

(rarninyp program in pla Cc Wh WwW: beleved to

ty adequat lo addr WOrKID with

ston Whaler, Ine

1997), which

da respiratory injury. The Walks cast

as decided in 1997 and was based squarely On

iw Supreme Courts decision in bisher. The

hiorida Supreme Court receded from lishes

2000. Turner. The legal basis of Wilk

undermined

Phe bank also maintains that the expert affidavit

Of lar. Robbin as lepally insulficient. Thi

Objection in the trial Court was that the affidavit

as lacking in personal knowledpe and did not

attach the documents to which the doctor

d. The |e pal authority cited by the bank

»X Iransportation, Inc. v. Pasco County

é¢ OF de ¥, / 9 (I 1a 2a | »¢ A 199 BP i IL dial

emmvolved alfidavits submitted by tact

inesses Uryipy to establish whether

Construction had >< Puil Qt) a rainlroad Cit)

Ol a parucular date. The alfidavitin this ca

the alliday fan ex t witness. |The bank

I

provid dd ati iuithmority be thi pre

that the allidavitis insufficient the alfidavit ot

an expert with

rave £2

bor the lated reason there are disputed 1 Lie

Ol material fact and summary pudepment should

hot hia bcen pranted. We reverse th LaydaEbhaa

Land remand for lurther procecdin