Be warned medical malpractice defense lawyers – if you drop a Fabre defense during trial, we get a new defense

Edwards v. Rosen,
No. 2D14-3093, 2016 WL 358973, 41 Fla. L. Weekly D295 (Fla. 2d DCA 2016)
A popular “gotcha” tactic among some medical malpractice defense lawyers has been to drop their Fabre defense during trial, after all of the evidence of the fault of the Fabre defendant has come in.  In this case, the Second District holds that the prejudice caused by this tactic requires a new trial.
In Edwards, Mary Edwards had been hospitalized for a pulmonary embolism and placed under the care of a team of doctors lead by Dr. Shaheen Faruque.  The team included Dr. Rosen, Dr. Jeffrey Scott, Dr. Richard Juda and Dr. Imtiaz.  Ultimately, Mrs. Edwards died while she was under the care of these doctors.  Her husband filed a wrongful death medical malpractice claim Dr. Faruque, Dr. Ahmad, Dr. Rosen, their employees and Lee Memorial Health Systems, which in then in turn employed Dr. Scott and Dr. Juda.  In his original response to the complaint, Dr. Rosen raised a conditional Fabre defense stating “If any Co-Defendants are dismissed from this case at any times, these Defendants adopt at the time of dismissal all allegations asserted by Plaintiff against those Co-Defendants, for purposes of placing those individuals and/or entities on the verdict form pursuant to Fabre” Eventually Dr. Ahmad and his employer were granted summary judgment.  Edwards settled with Dr. Faruque, his employer and Lee Memorial, leaving only Dr. Rosen as a defendant.  Initially, the court allowed Dr. Rosen to raise a Fabre defense against Lee Memorial for the alleged negligence of Dr. Scott and Dr. Juda. Edwards was able to get the court to strike Lee Memorial as a Fabre Defendant.  In response, Dr. Rosen asked the asked the court to include Dr. Juda and Dr. Scott as non-party defendants.   Edwards argued against it since the trial was so close and his case would be hurt because his trial preparations had not account for the inclusion of these two doctors.   The court allowed Dr. Rosen to have Dr. Juda, Faruque and Dr. Scott as non-party defendants since they had stricken Lee Memorial.  Trial started twelve days later.
At trial, the opening statements were made, the court gave preliminary instructions, and the plaintiff presented his case, all based on the amended pleading including the Fabre defense.  After the plaintiff rested, on the last day of trial, the defense withdrew the Fabre defense.  The plaintiff objected, moved for mistrial, and asked the trial court to give a curative instruction to tell the jury that the defendant had withdrawn the defense, but the court failed to do so.  As a result, the plaintiffs presented their case premised on the belief that the jury would apportion fault between the defendant and the Fabre defendants, “only to have the jury instead decide the case on an all or nothing basis.”  The jury chose to give the plaintiff nothing.
In Hartong v. Bernhart, 128 So.3d 858 (Fla. 5th DCA 2013), the court rejected similar tactics with respect to a comparative negligence defense.  In Philip Morris USA, Inc. v. Arnitz, 933 So.2d 693 (Fla. 2d DCA 2006), the plaintiff was able to amend his complaint to plead comparative negligence after the defendant dropped it as a defense.
Here, the court holds that amendment was not an option available to the plaintiff, because the plaintiff already had settled with and dismissed the Fabre defendants.  The court held that the defendant’s “gamesmanship” here required a new trial:
“We recognize that a defendant may waive any defense. …  However, such a right is not carte blanche to engage in gamesmanship or abuse procedure. From our review of the record, it is apparent that [defendant’s]trial counsel engaged in conduct designed to acquire the benefit of the Fabre defense, i.e., having evidence of the negligence of others introduced at trial, without the cost of having fault apportioned between the Fabre defendants and himself. This gamesmanship was an attempt by [defendant’s] counsel to exert control over [plaintiff’s] presentation of the case.  … More importantly, raising an affirmative defense only to withdraw it in an attempt to muddle the plaintiff’s presentation of the case undermines the truth seeking purpose of a trial.”
The court cautioned that it was not holding that a defendant may not waive a defense, but that the defendant’s procedural maneuvering in this case was unacceptable.
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