ROBERT COUSINS and SCOTT SANKEY v. IVETTE DUPREY
19-3602
| Fla. Dist. Ct. App. | Jul 21, 2021Background
- Plaintiff sued a surgeon and his P.A. for medical malpractice alleging the surgeon failed to remove a stricture at the ileocolonic anastomosis during a 2008 bowel resection.
- In discovery the surgeon answered an interrogatory saying the stricture was treated; at deposition he gave equivocal testimony (stating he inspected and removed diseased tissue and that he "believe[d]" he removed the stricture).
- Defense experts later concluded the surgeon did not remove the ileocolonic anastomosis stricture and that he mistakenly testified otherwise; at trial the defense intended to assert the surgeon exercised medical judgment in leaving a non‑clinically significant stricture.
- Plaintiff moved for sanctions, arguing the deposition and discovery answers were false and counsel knew of the falsity but hid it to gain advantage; the trial court barred the medical‑judgment defense and awarded $271,487.82 in attorneys’ fees and costs against defense counsel jointly and severally.
- The plaintiff later settled with the surgeon, leaving the sanction order against the two defense attorneys, who appealed.
- The Fourth District reversed: it held the record did not show counsel acted in bad faith, rejected the trial court’s conclusions about duties to file errata or update interrogatories, found medical judgment was not an affirmative defense, and ruled the fee award excessive and unsupported.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether sanctions for bad‑faith litigation/fraud were warranted based on the surgeon's deposition, interrogatory answer, and counsel's conduct | Counsel knowingly concealed false testimony and discovery responses to gain advantage; sanctions needed | Counsel did not know the deposition was false when given; they reasonably relied on surgeon and experts; no duty to correct before learning falsity | Reversed — no clear evidence counsel knowingly engaged in fraud; trial court abused discretion under Moakley standard |
| 2. Whether counsel had a duty to file an errata or update interrogatory answers after deposition | Failure to file errata/update showed concealment and warrants sanction | No obligation to file errata or to supplement interrogatories absent rule requiring it; deponent, not counsel, may change transcript | Reversed — no duty to file errata or to update interrogatories; trial court misapplied law (Rules and precedent) |
| 3. Whether the "medical judgment" defense was an affirmative defense waived by not pleading it | Defense should have pled medical judgment as an affirmative defense; failing to do so waived it | Medical judgment disputes negligence—it is not an affirmative legal excuse and need not be separately pleaded | Reversed — medical judgment is a factual dispute in malpractice cases, not an affirmative defense that was waived |
| 4. Whether the attorneys’‑fee sanction amount was appropriate and causally related to misconduct | Fee award reflects actual fees and costs caused by defendants' misconduct and needed to compensate plaintiff | Exclusion of medical‑judgment testimony already remedied prejudice; the fee award did not tie hours to specific sanctionable acts and was excessive | Reversed — exclusionary ruling ameliorated prejudice; fee award was neither directly tied to proven misconduct nor supported by reasonable, detailed billing |
Key Cases Cited
- Moakley v. Smallwood, 826 So. 2d 221 (Fla. 2002) (inherent‑authority fee awards require express findings of bad faith and detailed factual findings tying conduct to fees)
- Adams v. Murphy, 394 So. 2d 411 (Fla. 1981) (perjury defined as willful false testimony on a material matter)
- Cohen v. State, 985 So. 2d 1207 (Fla. 3d DCA 2008) (statements of belief/opinion do not constitute perjury)
- Norelus v. Denny's, Inc., 628 F.3d 1270 (11th Cir. 2010) (courts should recognize human error and honest misstatements; errata sheets can be improper if used to materially alter testimony)
- Dos Santos v. Carlson, 806 So. 2d 539 (Fla. 3d DCA 2002) (no continuing duty to supplement discovery responses)
- Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981) (Florida Rules do not impose a continuing disclosure duty)
- Vieira v. Doe, 813 So. 2d 1030 (Fla. 4th DCA 2002) (sanctions improper where interrogatories were vague and counsel reasonably believed answers true)
- Gilbert v. Eckerd Corp. of Fla., Inc., 34 So. 3d 773 (Fla. 4th DCA 2010) (false statements and inconsistencies are typically addressed by impeachment and traditional discovery sanctions, not large fee awards)