Ferere v. Shure, 2011 Fla. App. LEXIS 11351

Ferere sued her gynecologist and primary care physicians for alleged failure to diagnose breast cancer, leading to radical mastectomy in 2002.
At trial, the gynecologist argued a referral and the PCPs argued an ultrasound showed no cancer; both claimed cancer would have required radical mastectomy anyway.
During first trial jury selection, plaintiff's counsel suggested 'doctoring of records'; the court granted a mistrial due to an undisclosed issue.
Post-mistrial, the gynecologist and then the PCPs moved for attorney's fees under section 57.105(1); the trial court granted fees and costs.
Plaintiff appealed the fee orders and final judgments; the Fourth DCA reversed the fee orders but affirmed the final judgments.
On second trial, in limine precluded references to altered records; plaintiff referenced records in closing, caused objection and a curative instruction, and verdict favored defendants.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §57.105(1) sanctions apply	Ferere; 57.105(1) sanctions applicable for 'doctoring' claims.	Shure et al.; sanctions apply under statute and conditions.	Sanctions under §57.105(1) do not apply.
Whether §57.105(4) withdrawal requirement applies	Ferere; lack of time to withdraw after mistrial motion.	Shure et al.; withdrawal window should be available.	§57.105(4) withdrawal requirement not satisfied; sanctions not applicable.
Whether fraud/spoliation allegations could support sanctions	Ferere; alleged fraud on the court and spoliation supported claims.	Shure et al.; no pled fraud/spoliation in complaint; no first-party spoliation.	Fraud on the court and spoliation claims not cognizable for §57.105 sanctions.
Whether costs may be awarded under §57.105	Ferere; costs may be included with attorney's fees under §57.105.	Shure et al.; §57.105 does not authorize costs, only fees.	Costs are not authorized under §57.105.

Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002) (fraud-type sanctions not applicable for first-party spoliation)
Butler v. Yusem, 44 So.3d 102 (Fla. 2010) (fraud elements in misrepresentation actions)
Pino v. Bank of N.Y. Mellon, 57 So.3d 950 (Fla. 4th DCA 2011) (definition of 'fraud on the court')
Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla. 2005) (no independent cause of action for first-party spoliation)
Ferdie v. Isaacson, 8 So.3d 1246 (Fla. 4th DCA 2009) (statutory sanctions inapplicable to certain cost scenarios)
Winkelman v. Toll, 632 So.2d 130 (Fla. 4th DCA 1994) (sanctions order not ripe when not amount-determined)
Asinmaz v. Semrau, 42 So.3d 955 (Fla. 4th DCA 2010) (standard of abuse of discretion vs de novo review in sanctions)
Robin Roshkind, P.A. v. Machiela, 45 So.3d 480 (Fla. 4th DCA 2010) (de novo review when interpreting statutes; attorney's fees)
Golden Yachts, Inc. v. Hall, 920 So.2d 777 (Fla. 4th DCA 2006) (closing argument control and abuse of discretion standards)
Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980) (trial court's curative instructions; discretion standard)
Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002) (fraud-based sanctions; inappropriate to use for spoliation)