1 IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA CIVIL DIVISION JACK KOWALSKI, Individually; JACK KOWALSKI, as Parent and Next Friend of M.K., a minor, and JACK KOWALSKI, as Personal Representative of the Estate of BEATA KOWALSKI, Plaintiffs, v. JOHNS HOPKINS ALL CHILDREN’S HOSPITAL, INC., Defendants. CASE NO. : 2018-CA-005321-NC / DEFENDANT JOHNS HOPKINS ALL CHILDREN’S HOSPITAL’S RENEWED MOTION FOR DIRECTED VERDICT, MOTION FOR NEW TRIAL, AND MOTION FOR REMITTITUR Defendant, Johns Hopkins All Children’s Hospital, pursuant to Florida Rule of Civil Procedure 1.480 and 1.530, timely moves this Court to grant: (1) renewed motions for directed verdict, and if those motions are denied (2) motions for new trial, and, if those motions are denied (3) motions for remittitur as to each of the three plaintiffs and as to each of the claims submitted to the jury on the verdict returned on Thursday, November 9, 2023. Filing # 186721373 E-Filed 11/24/2023 11:54:06 AM Filed 11/27/2023 09:50 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 2 The Defendant also moves this Court to grant the same motions concerning each of the claims for punitive damages for the three subclaims for false imprisonment and the one subclaim of battery for which the jury returned the bifurcated verdict later in the day on November 9, 2023, awarding a total of $50,000,000 to Maya Kowalski as punitive damages. This motion is unavoidably lengthy. But in the end this Court has little choice but to direct a verdict on all claims for which this Defendant should have received that relief earlier and to grant a new trial on both liability and damages for any remaining claims. The jury voted “yes” on every possible method to award compensatory or punitive damages against Johns Hopkins All Children’s Hospital. Under the leadership of Juror #1, the jury voted “yes” despite the fact that, under the law instructed by the Court and the evidence presented during the trial, many of the claims were not proven or, at a minimum, the manifest weight of the evidence was contrary to a “yes” vote on those claims. This Court allowed Plaintiff’s counsel to use an improper method of closing argument that was intentionally designed to mislead the jury about both the method to decide damages and the reasonable range in which the jury was free to operate. In the improper closing argument, Plaintiff’s counsel requested aggregate damages of $201,573,728. (See Appendix A). 3 The jury awarded $211,451,174, approximately 105% of that request! Both the awards for the personal injury claims of Maya Kowalski and for the wrongful death of Beata Kowalski are many times higher than the range currently awarded by other juries and recognized in case law for such awards. Under the leadership of Juror #1, the jury’s verdict was obviously tainted by the improper closing argument of Plaintiff’s counsel, but it sometimes awarded amounts even higher than Plaintiff’s counsel requested. It is patent that the jury did not award noneconomic damages as if these claims had been tried separately, and the same is true for economic damages for which duplication of award is rampant in the verdict. This Court, before that closing argument, committed to following the law after the return of the verdict if Plaintiff’s argument resulted in such a massively tainted verdict. The awards are so arbitrary that they cannot even be used as a reliable measure for remittitur. A remittitur in this case would simply require the Court to serve as a fact-finding jury of one. This Court must grant new trial as to liability and damages on any claim for which a directed verdict is not granted. After the jury returned its verdict determining liability, compensatory damages, and making findings on the substantive issues allowing for an award of punitive damages under section 768.72, Florida Statutes, this 4 Court proceeded immediately with an abbreviated trial on the amount of punitive damages, in part, because this case needed to be completed on November 9 for the reasons asserted by the Court. The Plaintiff proposed a verdict form, for the first time, that included a claim under section 768.73(1)(c) that the punitive damages should be unlimited because the Defendant had a “specific intent” to harm Maya Kowalski. Not only is there no evidence that would establish that claim, but that claim is very clearly a substantive claim involving the entitlement for damages in excess of those normally allowed under section 768.72, Florida Statutes. As a matter of basic due process, this claim under section 768.73, Florida Statutes, needed to be pleaded in the Eighth Amended Complaint by something more than a conclusory claim that the Defendant had acted willfully, wantonly, or maliciously. The Defendant needed to have the opportunity to present evidence on that claim prior to the initial verdict in this bifurcated trial, to move for directed verdict on the claim at the close of the Plaintiff’s case, and to argue this matter in its main closing. Instead, this Court placed this substantive issue affecting the cap on punitive damage on the jury’s verdict for the second phase of the bifurcated proceeding where only the damage amount should have been tried. Moreover, this Court declined to decide the question of law 5 concerning the burden of proof for the “specific intent” finding. It thereby further emphasized this issue by presenting it twice to the jury under optional burdens of proof. The jury then returned a verdict, again voting “yes” on everything under the leadership of Juror #1. The jury awarded $50,000,000 in punitive damages. It awarded $25,000,000 for two false imprisonment claims for periods where: (1) Maya Kowalski was treated in an intensive care unit, and (2) she was observed for two days in a rather ordinary hospital room and the video recording in evidence shows no mistreatment warranting any punitive damages. The jury awarded another $25,000,000 for a combined false imprisonment and battery, where she was placed on a bed either in her own hospital room or some other hospital room for a matter of minutes on January 6, 2017, which is the day she went to the courthouse. This is the day her mother wrote her suicide note unaware of this incident. Maya Kowalski was held on a hospital bed to document the condition of her skin photographically prior to leaving the hospital. She has her shorts and bra on for these photographs, which were not shared or publicized at all by the Defendant. It should be noted that the Defendant maintained that she was actually photographed again on her return. But in light of Maya Kowalski’s insistence that it occurred once, this verdict is only for a single event. Maya Kowalski saw both her uncle and her 6 psychologist, Dr. Duncan, on that same day. She seemed essentially normal to her uncle on that day, and she made no complaint to Dr. Duncan. The jury determined this conduct was more than an intentional tort. It decided that it was “intentional misconduct” under the definition in section 768.72, Florida Statutes, and awarded an amount of punitive damages that would be excessive even in an Engel wrongful death case where a plaintiff suffers for years with breathing disorders allegedly brought on by an addition to cigarettes caused by the fraudulent conduct of a large, for-profit, international corporation. This motion is filed within the mandatory 15-day window that is provided for all cases without regard to their complexity or trial length. Although a full transcript was requested shortly after the return of the verdicts and some transcripts of portions of the trial are available now, the motion for this exceedingly complex and lengthy trial is not as comprehensive as it would be with a full transcript and with sufficient time to address a case that is easily nine times more complex than the normal case in which such a motion is filed. Rule 1.530(b) specifically provides for an amendment to the motion to state new grounds. The Defendant has sought to identify each ground for this motion, but it will seek to amend its motion for any additional 7 ground, and to provide greater factual information and legal argument as soon as that is feasible. Table of Contents I. The applicable standards for these motions .............................. 13 A. Renewed motion for directed verdict. ............................... 13 B. Motion for new trial based on manifest weight of the evidence. .......................................................................... 14 C. Motion for new trial based on errors occurring during the trial. ................................................................................. 17 D. Motion for new trial based on excessive awards of damages. .......................................................................... 20 E. Motion for remittitur of compensatory awards of damages. .......................................................................... 22 F. Renewed motion for directed verdict on claims for punitive damages. ............................................................ 24 G. Motion for new trial based on punitive damages contrary to the manifest weight of the evidence. ............................ 26 H. Motion for new trial based on errors occurring during the trial relating to punitive damages. .................................... 26 I. Motion for new trial based on excessive awards of punitive damages. ............................................................ 27 J. Motion for remittitur of punitive damages. ....................... 27 II. Issues affecting all claims ......................................................... 29 A. This Court erred in the application of Chapter 39 immunity affecting nearly every claim in the case. ........... 29 B. The Court erred in allowing the Plaintiff’s attorney to make the massive request for damages, generated by the per hour/per component closing argument, which affected every claim in this case. ...................................... 35 8 C. The decision to grant the Defendant’s motion for directed verdict on the “negligent training” claim only at the very end of the trial allowed the jury to be confused and misled by irrelevant evidence that impacted many of the claims in this case. ...................................................................... 37 D. The grant of additional time to Plaintiffs in this case severely prejudiced the Defendant. ................................... 38 E. Dr. Eli Newberger’s deposition testimony over objection. .. 40 III. Motions for the intentional tort claims of Maya Kowalski ......... 46 A. False imprisonment .......................................................... 47 1. The claim for a false imprisonment from October 7 to 13, 2016. .................................................................................................................... 47 a) Renewed motion for directed verdict and motion for new trial based on a verdict against the manifest weight of the evidence. ............................................ 50 b) Motion for new trial on excessive compensatory damages. ................................................................. 52 c) Motion for remittitur on excess compensatory damages. ................................................................. 54 d) Renewed Motion for directed verdict on these punitive damages or in the alternative motion for new trial on grounds of manifest weight of the evidence concerning punitive damages. ................... 55 e) Motion for new trial on the amount of punitive damages. ................................................................. 57 f) Motions for remittitur on punitive damages. ............ 58 2. The claim for a false imprisonment from October 18 to 20, 2016 ..................................................................................................................... 58 a) Renewed motion for directed verdict and motion for new trial based on a verdict against the manifest weight of the evidence. ............................................ 60 9 b) Motion for new trial on excessive compensatory damages. ................................................................. 62 c) Motion for remittitur on excess compensatory damages. ................................................................. 62 d) Renewed motion for directed verdict or in the alternative motion for new trial on a verdict against the manifest weight of the evidence on punitive damages. .................................................... 63 e) Motion for new trial on the amount of these punitive damages ..................................................... 65 f) Motions for remittitur on punitive damages. ............ 65 3. The claim for a false imprisonment on January 6, 2017. ........ 66 a) Motion for new trial due to a verdict against the manifest weight of the evidence and due to excessive compensatory damages. ........................... 68 b) Motion for remittitur on excessive compensatory damages. ................................................................. 70 c) Renewed Motion for directed verdict or new trial for a verdict against the manifest weight of the evidence on punitive damages. ................................. 71 d) Motion for new trial on the amount of these punitive damages. .................................................... 72 e) Motions for remittitur on punitive damages. ............ 73 B. Battery ............................................................................. 74 1. January 6, 2017. ........................................................................................... 74 a) Motion for new trial on excessive compensatory damages. ................................................................. 74 b) Motion for remittitur on excessive compensatory damages. ................................................................. 76 c) Renewed Motion for directed verdict or in the alternative motion for new trial on a verdict 10 against the manifest weight of the evidence concerning punitive damages. .................................. 76 d) Motion for new trial on these punitive damages ....... 78 e) Motions for remittitur on punitive damages. ............ 78 2. Battery for hugs and other touches. .................................................... 79 a) Renewed motion for directed verdict and motion for new trial based on a verdict against the manifest weight of the evidence. ............................................ 80 b) Motion for new trial on excessive compensatory damages. ................................................................. 82 c) Motion for remittitur on excess compensatory damages. ................................................................. 83 C. Intentional Infliction of Emotional Distress ...................... 84 1. Renewed motion for directed verdict and motion for new trial based on a verdict against the manifest weight of the evidence. ............................................................................................................. 87 2. Motion for new trial based on prejudicial legal errors. .............. 90 3. Motion for new trial on excessive compensatory damages. ...... 91 4. Motion for remittitur of excessive compensatory damages. ..... 92 IV. Medical Negligence ................................................................... 93 A. Renewed motion for directed verdict on breach of duty. . 100 B. Renewed motion for directed verdict on causation of damage........................................................................... 101 C. Motion for new trial based on a verdict contrary to the manifest weight of the evidence concerning liability for medical negligence. ........................................................ 103 D. Renewed motion for directed verdict, or in the alternative, motion for new trial based on a verdict contrary to the manifest weight of the evidence concerning liability for Dr. Sally Smith. Motion for new 11 trial for legal errors that deprived the Defendant of a fair trial. ............................................................................... 104 F. Motion for new trial based on legal errors in the admissibility of evidence from witnesses. ....................... 111 G. Motion for new trial on excessive compensatory damages. 111 H. Motion for remittitur on excessive compensatory damages. ........................................................................ 113 V. Issues affecting the claim of billing fraud presented by Mr. Kowalski, individually. ........................................................... 114 A. Renewed Motion for Directed Verdict or, if actually necessary, motion for new trial based on a verdict contrary to the manifest weight of the evidence. ............ 119 B. Motion for new trial based on excessive damages. ........... 119 VI. Issues affecting the claims presented by the Estate of Beata Kowalski................................................................................. 120 A. Intentional infliction of emotional distress seeking survival damages. ........................................................... 120 1. Renewed motion for directed verdict. ................................................ 127 2. Motion for new trial on a verdict against the manifest weight of the evidence. ............................................................................. 127 3. Motion for new trial due to excessive compensatory damages ........................................................................................................... 128 B. Intentional Inflictions of Emotional Distress causing death by suicide. ............................................................ 129 1. Renewed for renewed directed verdict and motion for new trial based on a verdict that is contrary to the manifest weight of the evidence. ............................................................................. 133 2. Motion for new trial based on legal errors in the jury instructions, and on the decision to add a second theory of causation to the trial midstream. ....................................................... 134 12 3. Motion for new trial based on errors related to the testimony of Dr. Richards. ...................................................................... 135 4. Motion for new trial on excessive compensatory damages ..... 138 5. Motion for remittitur on excessive compensatory damages. 140 13 I. The applicable standards for these motions Because the Plaintiff presented multiple claims and subclaims, this motion will provide the standards for the motions at the inception and refer to these standards in the motions directed to specific claims and subclaims. The several motions and standards are listed in the table of contents preceding this section. The Defendant first seeks a directed verdict on most claims. Should the Court deny a directed verdict as to any claim, the Defendant alternatively seeks a new trial on those claims for which a directed verdict has been denied. If the Court denies a directed verdict and a new trial on any claim, the Defendant next seeks remittitur of the damages associated with those claims for which a directed verdict and new trial have been denied. The Defendant is not waiving its right to appeal motions by raising alternative motions in the event that the earlier motions are denied. A. Renewed motion for directed verdict. A motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict for the nonmoving party. In considering a motion for directed verdict, the court must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor of the nonmoving party. If there are 14 conflicts in the evidence or different reasonable inferences that may be drawn from the evidence, the issue is factual and should be submitted to the jury. Sims v. Cristinzio , 898 So.2d 1004, 1005 (Fla. 2d DCA 2005). A renewed motion or reserved motion is subject to the same standard; sometimes, however, it is more apparent at the end of a case that an essential element of a claim was not supported by any relevant evidence or that the evidence on the issue was not in actual dispute. With the initial motion, the trial court has the luxury of anticipating that the jury will likely vote in favor of the party moving for a directed verdict. Once the jury reaches a verdict influenced by prejudice, passion, or simple confusion, it is duty of the Court to make the objective decision based on the law and the actual evidence. B. Motion for new trial based on manifest weight of the evidence. A motion for new trial based on a verdict that is contrary to the manifest weight of the evidence may be granted even when a motion for directed verdict is unavailable. “The trial judge should always grant a motion for new trial when ‘the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record.’” Brown v. Estate of Stuckey , 749 So. 2d 490, 497 (Fla. 1999) (quoting Cloud v. Fallis , 110 So. 2d 669, 673 (Fla. 1959)). When considering a motion for new trial based on the manifest weight of the 15 evidence, the Florida Supreme Court held in Van v. Schmidt , 122 So. 3d 243 (Fla. 2013), that: a trial court is not required to defer to the jury’s weighing of conflicting testimony in considering the motion. Rather, in making its decision, the trial court “must necessarily consider the credibility of the witnesses along with the weight of all of the other evidence. The trial judge should only intervene when the manifest weight of the evidence dictates such action.” In other words, it is the trial court’s responsibility—not the district court’s—to weigh the evidence, consider the credibility of the witnesses, and determine whether the jury “has reached an unjust decision on the facts.” Id . at 260 (citations omitted and emphasis in original). There are aspects of this case that made it difficult for the jury to weigh the evidence or follow the law. The medical and scientific evidence was complex and overshadowed by the emotional impact of a good family devastated by a dependency proceeding that was beyond the Defendant’s control. Moreover, the tort of intentional infliction of emotional distress (even without the additional unique factor of suicide in this case) is a difficult intentional tort for a jury to understand. In this case, the jury needed to sort out any actions of the Defendant’s employees that were more than negligence and more than a mere traditional intentional tort. They needed to identify conduct that actually rose to the level of extreme and 16 outrageous conduct committed with the intent to, or with reckless disregard of the high probability of causing, severe emotional distress. To perform that task when presented with an emotional case, and with a family sitting for weeks at the trial table, and in a high-profile case presented to a national audience, would be nearly impossible for most juries even with a different foreperson. The Court is given a higher gatekeeping function for this unusual tort, and that function continues through the decision to determine that a verdict was against the manifest weight of the evidence. Finally, this standard and the job of the trial court is even more important in this case in which the theory is that the employees of the Defendant committed conduct that was so extreme and outrageous that it was the legal cause of a person’s suicide. A suicide that occurred not because those employees directly interfaced with Beata Kowalski after October 13, 2016. Instead, a suicide that occurred because extreme and outrageous conduct of employees inside the hospital was either described to Beata Kowalski by her husband or were experienced by her through some remote form of communication. A suicide that purportedly is the legal responsibility of the Defendant, and not the intervening independent act of Beata Kowalski, because somehow the Defendant’s employees intended their actions to cause this extraordinary level of stress in a 17 woman many miles away. A woman that some of the employees had never met. The gatekeeping job of evaluating the manifest weight of the evidence for this claim is exceptionally important in this case of first impression. C. Motion for new trial based on errors occurring during the trial. A motion for new trial based on legal errors occurring during the trial is analyzed separately from a motion based on the manifest weight of the evidence. As explained in Harlan Bakeries, Inc. v. Snow , 884 So. 2d 336, 339 (Fla. 2d DCA 2004): A trial court has broad discretion in deciding whether to override a jury verdict on the ground that it is contrary to the manifest weight of the evidence. However, the closer the issue comes to being purely legal in nature, the less discretion a trial court enjoys in ruling on a new trial motion. Tri–Pak Mach., Inc. v. Hartshorn , 644 So. 2d 118, 119 (Fla. 2d DCA 1994). This is so because an error involving a purely legal question can be as accurately reviewed from an appellate record as from the trial judge’s bench. Id That case explained that the then-applicable legal standard the trial court must use in deciding a motion for new trial based on errors at trial when an objection was overruled during the trial is whether the error is so pervasive or prejudicial that the injured party is denied the right to a fair trial. Harlan Bakeries, Inc. v. Snow , 884 So. 2d 336, 339 (Fla. 2d DCA 2004). But the applicable prejudice analysis has changed since Harlan Bakeries 18 A new trial is required where the trial judge “becomes aware of a specific prejudicial legal error or when he or she finds that the jury’s verdict is contrary to the manifest weight of the evidence.” Carr ex re. Carr v. Sch. Bd. of Pasco Cnty., 921 So. 2d 825, 828 (Fla. 2d DCA 2006). This means that when considering a motion for new trial based on a prejudicial error: The trial judge who must decide whether to grant a new trial on the proffered ground that some reversible error of law occurred at some point during the trial need only ask himself if there was error and if so whether the error was substantially prejudicial. In that instance, the judge is required to sit in essence as an appellate judge. If he concludes that reversible error has been committed, the judge is obliged to grant a new trial on the same basis that an appellate court would do so. Ford v. Robinson, 403 So. 2d 1379, 1382 (Fla. 4th DCA 1981); see Krolick v. Monroe ex rel. Monroe, 909 So. 2d 910, 914 (Fla. 2d DCA 2005) (holding that judge ruling on a motion for new trial essentially acts as an appellate judge); Bulkmatic Transp. Co. v. Taylor, 860 So. 2d 436, 447-48 (Fla. 1st DCA 2003) (same); Midtown Enters., Inc. v. Local Contractors, Inc., 785 So. 2d 578, 580 (Fla. 3d DCA 2001) (same). An appellate court will reverse a judgment or grant a new trial if a prejudicial error “has resulted in a miscarriage of justice.” Goldschmidt v. Holman, 571 So. 2d 422, 425 (Fla. 1990); § 59.041, Fla. Stat. (2023). This prejudice analysis, also known as the harmless error analysis, “is not 19 limited to the result in a given case, but it necessarily concerns the process of arriving at that result.” Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1257 (Fla. 2014). The Florida Supreme Court has announced the test for determining prejudicial error on appeal in a civil case as follows: To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict. Thus, as in [ State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.1986)], the responsibility for proving harmless error remains with the beneficiary of the error, who must demonstrate that there is no reasonable possibility that the error contributed to the verdict. As the appellate court evaluates whether the beneficiary of the error has satisfied its burden, the court’s obligation is to focus on the effect of the error on the trier-of-fact and avoid engaging in an analysis that looks only to the result in order to determine harmless error. Could the admission of evidence that should have been excluded have contributed to the verdict? Could the exclusion of evidence that should have been admitted have contributed to the verdict? Unless the beneficiary of the error proves that there is no reasonable possibility that the error contributed to the verdict, the error is harmful. Special, 160 So. 3d at 1256-57 (emphasis added). Thus, the party moving for a new trial must show that there was error and, if so, then the burden shifts to the non-moving party to show that the error did not contribute to the verdict. 20 D. Motion for new trial based on excessive awards of damages. A trial court may order a new trial on the ground that the verdict is excessive. Brown v. Estate of Stuckey , 749 So. 2d 490, 498 (Fla. 1999) (citing Baptist Memorial Hospital, Inc. v. Bell , 384 So. 2d 145 (Fla. 1980)). This motion is distinct from the new trial that can be granted after a remittitur is rejected because remittitur is not proper where both liability and damages have to be retried. See Malone v. Folger , 180 So. 522, 523 (Fla. 1938) (noting that remittitur may be allowed where liability “appears and the verdict is excessive”); Swan v. Wisdom , 386 So. 2d 574, 576 (Fla. 5th DCA 1980) (allowing a new trial on all issues, rather than remittitur, where the disputed issues interrelated liability and damages). This motion is based on errors during the trial affecting both liability and damages, and not merely the jury’s own mistake in awarding an excess amount. These are often errors that cause the amount in the verdict to be so unreliable that the verdict cannot even be used by a judge to remit to a lesser amount that is legally appropriate without merely becoming a jury of one. Thus, a request for this new trial is properly made prior to a motion for remittitur A new trial may be ordered based on an excessive verdict when “the record affirmatively shows the impropriety of the verdict or there is an independent determination by the trial judge that the jury was influenced