VOLUME XXI, NUMBER 1
January, 2009

CONFIDENTIAL INFORMATION CANNOT BE DISSEMINATED TO OTHER ATTORNEYS WHO ARE NOT INVOLVED IN THE UNDERLYING OR COLLATERAL LITIGATION

In Cordis Corp. v. O’Shea, 33 Fla. L. Weekly D1923 (Fla. 4 th DCA August 6, 2008), the Fourth District Court of Appeal quashed the trial court’s order that allowed the plaintiff’s attorney in the underlying case to reveal confidential information to other attorneys, regardless of their involvement in pending collateral litigation, because the defendant manufacturer was able to demonstrate the potential for irreparable harm if that confidential information were to be disseminated to attorneys not involved in the instant or collateral litigation.

The underlying action in Cordis involved medical products liability with regard to an allegedly defective stent that had been implanted in the plaintiff. The plaintiff’s attorney served extensive requests for production of documents on Cordis, addressing all aspect of the manufacturing, marketing, and use of the stent in question. Cordis timely responded to the discovery requests, but objected to the production of certain documents without a protective order on trade secrets and confidentiality. The plaintiff’s attorney moved to overrule Cordis’ objections, arguing that he would keep the documents confidential until such time as he challenged the designation of confidentiality. Further, the plaintiff’s attorney informed the court that at least 20 other law firms were interested in reviewing the confidential documents. Cordis responded that the documents contained confidential, proprietary, and trade-secret information, and that a widespread sharing of the documents would hinder their efforts to protect confidentiality.

The trial court entered an order requiring that the plaintiff’s attorney would have to provide advance notice to Cordis before any disclosure of the confidential documents to other attorneys. In addition, the trial court limited the dissemination of the materials to plaintiffs and defendants, their attorneys, and others who were essential to the prosecution and defense of those cases. Thereafter, Cordis produced thousands of pages of confidential documents. Soon thereafter, the plaintiff’s attorney informed Cordis of their intent to disclose confidential documents to other attorneys in Florida and other states who are not involved in pending litigation. Cordis filed a motion to prohibit the dissemination of these materials, but the trial court denied Cordis’ motion, and allowed the plaintiff’s attorney to disclose the confidential documents to any attorney, regardless of whether they were involved in pending litigation. Cordis filed a writ of certiorari with the Fourth District Court of Appeal to review the trial court’s order.

The plaintiff’s attorney argued, among other things, that he had a First Amendment right to share the confidential discovery to anyone who requested it. Cordis insisted that discovery rules are provided for the sole purpose of assisting the parties involved in litigation; not for the purpose of giving prospective litigants an advance peek at confidential documents. Cordis further argued that as a manufacturer of medical devices, it would suffer irreparable harm should the technology and other innovations of its core products be exposed to a wide array of individuals not involved in the ongoing litigation.

The court’s inquiry focused on balancing the potential harm that could come to Cordis if the confidential and proprietary information were to be disclosed to attorneys who were not involved in the ongoing litigation, against the purpose of the liberal discovery rules—namely, to facilitate case preparation involving the same defendant and medical device. Ultimately the court agreed with Cordis holding that the potential harm to Cordis far outweighed any benefit that may be enjoyed by nonparties. Additionally, the court held that there was no First Amendment right of access to confidential information.

 Robert C. James

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FLORIDA SUPREME COURT HOLDS THAT PRE-INJURY RELEASE EXECUTED BY PARENT OF A MINOR UNENFORCEABLE WHEN INVOLVING COMMERCIAL ACTIVITY

The Florida Supreme Court just released its long awaited decision in Fields v Kirton, 2008 WL 5170603 (Fla. December 11, 2008) which held that based on public policy concerns, a parent may not bind a minor’s estate by the pre-injury execution of a release. On the one hand, the Court specifically applied this ruling as to pre-injury releases in commercial activities but on the other hand confusingly stated in a footnote that “our decision in this case should not be read as limiting our reasoning only to pre-injury releases involving commercial activity” but then further stated that “any discussion with respect to non-commercial activities would be dicta.”

Fields involved a wrongful death action filed on behalf of the Estate of Christopher Jones (“Jones”) against the Kirtons, as owners and operators of Thunder Cross Motor Sports Park. Jones’ father had taken his son, Christopher, to the Thunder Cross Motor Sports Park to ride his all terrain vehicle (“ATV”). To gain entry into the facility and be allowed to participate in riding the ATV, Jones’ father signed a release and waiver of liability, assumption of risk, and indemnity agreement. While attempting a jump, Jones lost control of his ATV causing him to be ejected, and when he hit the ground, the ATV landed on him resulting in his death.

After suit was filed, the trial court entered summary judgment in favor of the Kirtons finding that the release executed by Mr. Jones barred the claim. On appeal, the Fourth District Court of Florida reversed the trial court’s order holding that a parent could not bind a minor’s estate by the parents’ execution of a pre-injury release.

The Florida Supreme Court in finding that a parent cannot bind a minor’s estate by the pre-injury execution of a release, looked at the two compelling interests: that of the parents in raising their children and that of the state to protect children. The Court found that parental rights are not absolute and the state as “parens patrie” (Latin for “parent of his or her country”) may, in certain situations, usurp parental control. The Court looked to the decisions of both the district courts of Florida and out-of-state decisions to determine the propriety of a parent’s execution of a pre-injury release on behalf of a minor child. The Court noted that the jurisdictions where pre-injury releases executed by parents on behalf of minor children have been held enforceable involve a minor’s participation in school run or community sponsored activities which involve different policy considerations than those associated with commercial activities.

As to the Fields case, the Court found that while a parent has a fundamental right to raise a child which includes the right to decide which activities the child can participate in, a parent does not have the right to waive a minor child’s future tort claims. “A parent’s decision in signing a pre-injury release impacts the minor’s estate and the property rights personal to the minor.” Fields, 961 So.2d at 1129-1130. For this reason, the state must assert its role under parens patrie to protect the interests of the minor children. The Court found determinative that when a parent executes a pre-injury release and agrees to waive the tort claims of a child, the parent is not protecting the welfare of the child, but is instead protecting the interests of the activity provider. Ultimately, if the parent cannot afford to bear the financial burden of the child, the parties who suffer are the child, the other family members, and perhaps the people of the State. Based on these strong public policy concerns, the Court found that a pre-injury release executed by a parent on behalf of a minor child is unenforceable against the minor or the minor’s estate arising from injuries resulting from participation in a commercial activity.

It must be noted that this decision does not overrule the Court’s prior holding in Global Travel Mktg, Inc. v Shea, 908 So.2d 392 (Fla. 2005) which found that an arbitration agreement made by a parent of a minor is enforceable with regard to the minor’s tort claim.

We must await a further decision by the Florida Supreme Court regarding the enforceability of a pre-injury release with regard to a school sponsored or community-run activity.

Robin B. Rothman

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SON WHO WAS OPERATING VEHICLE DID NOT PRIMARILY RESIDE WITH MOTHER AND WAS NOT “AN INSURED” UNDER HER POLICY

In Bonich v. State Farm Mutual Automobile Insurance Company, 51 Fla. L. Weekly D2825, (2 ND DCA 2008), the Second District Court of Appeal affirmed the trial court’s ruling in favor of State Farm Mutual Automobile Insurance Company’s declaratory judgment action. The trial court had determined that Steven Sosa (“Sosa”), the operator of the injured passenger’s vehicle, was not “an insured” for purposes of coverage under his mother’s automobile liability policy.

The Appellant, Kerri Louise Bonich (“Bonich”) was a passenger in her own car, which Sosa (who was her boyfriend) was driving, at the time of the accident. They were involved in an automobile accident, injuring Bonich. Bonich sought coverage for her injuries under Sosa’s mother’s policy of insurance, State Farm Mutual Automobile Insurance Company. Under the policy an “insured” is defined as: 1. the first person named in the declaration; his or her spouse; their relatives; and any person or organization…

The policy further defines “relative” as “a person related to you or your spouse by blood, marriage or adoption (including ward or foster child) who resides primarily with you.” “You” refers to the named insured on the policy. All parties conceded that Sosa was a relative; however, a dispute arose over whether he primarily resided with his mother.

The issue of whether coverage is afforded is a legal question. However, the issue in this matter turned on Sosa’s primary residence and the issue of his residence was a factual question. As such, the trial court held an evidentiary hearing to resolve the disputed issues of fact relating to Sosa’s primary residence. Sosa’s mother testified that Sosa was kicked out of his mother’s home, due to his involvement with drugs, approximately one year prior to the accident. When he attempted to return, his mother called the police. Sosa testified that he lived with various friends over the year and moved from place to place. Sosa further testified that although he did not change his address with the Department of Motor Vehicles or have his mail forwarded, he also did not have any belongings at his mother’s home and had not lived there since he was kicked out. Based upon the evidence, the trial court determined that Sosa was not primarily residing at his mother’s home.

The Appellant’s argument relied upon case law addressing policies that provided liability coverage for relatives who are “residents of the insured’s household.” In cases concerning residency in the household, the involved courts focused on all the circumstances surrounding the person’s living arrangements, including financial support by parents, whether the alleged resident maintained a room and personal belongings at the residence, and whether the alleged resident was free to come and go from the residence. The Appellate Court found these cases irrelevant, specifically because the policy language in Sosa’s mother’s policy was different from the language in the cases involving “residents of the insured’s household.” Furthermore, the Appellate Court stated that even if it had considered these cases, they did not consider Sosa a resident of the household due to the surrounding circumstances.

As such, the Appellate Court affirmed the trial court’s decision that under the policy, Sosa was a relative but not one that was afforded coverage since he did not primarily live in his mother’s home.

Andrea R. Zigelsky