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Filing # 186721373 E-Filed 11/24/2023 11:54:06 AM 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, CASE NO.: 2018-CA-005321-NC Plaintiffs, v. JOHNS HOPKINS ALL CHILDREN’S HOSPITAL, INC., Defendants. / 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. 1 Filed 11/27/2023 09:50 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL 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). 2 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 3 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 4 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 5 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 6 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 7 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 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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 16 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. 17 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 18 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. 19 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 20 by considerations outside the record,” Kaine v. Gov’t Emps. Ins. Co., 735 So. 2d 599, 600-01 (Fla. 3d DCA 1999). Some cases still use an older test holding that it can be granted when the verdict shocks the judicial conscience. Brown, 749 So. 2d at 498. The question is not what amount the court itself would award, and the judge does not sit as a proverbial “seventh juror.” The legal question is whether the verdict is “so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.” Bould v. Touchette, 349 So. 2d 1181, 1185 (Fla. 1977). Especially when the verdict is deciding economic damages that require proof of a clear factual basis for the damages, the damages need to be reasonably supported by the evidence. Locastro v. Ruane, 525 So. 2d 500, 501 (Fla. 5th DCA 1988). It is incumbent upon a plaintiff in a trial court to present evidence to justify an award of economic damages in a definite amount. Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating an amount of money with reasonable certainty. United Steel & Strip Corp. v. Monex Corp., 310 So.2d 339, 342 (Fla. 3d DCA 1975) While remittitur can be an appropriate remedy for excessive damages, that remedy does not replace the remedy of new trial. There are times when it is impossible for a judge to perform the act of reducing a 21 verdict. See Smith v. Goodpasture, 179 So. 2d 240, 242 (Fla. 2d DCA 1965) (holding that award of noneconomic damages was clearly excessive and stating that “[i]f in the opinion of the trial judge it should be impossible for him to fix and determine a proper amount of remittitur, then he is directed to grant a new trial on the question of damages only”). In this case, for many of the claims, the awards in the verdict are so excessive and so beyond the proper range (due to the improper argument of Plaintiffs’ counsel that this Court allowed him to make at his own risk) that they really provide no benchmark from which this Court can perform a reduction as a question of law. Moreover, as a result of additional errors, a new trial is warranted on all issues for the claims in this case. E. Motion for remittitur of compensatory awards of damages. The Defendant in this motion will move for remittitur only as a last resort. The Defendant does not actually believe that any of the monetary awards in this verdict are sufficiently accurate and unaffected by passion and prejudice such that they could be used by this Court to make a legal decision, as compared to a factual decision, to reduce the amount in the verdict to an appropriate amount. If the motions that precede a motion for remittitur are denied in an order resolving these posttrial motions, the Defendant will appeal those rulings from the final judgment that is entered either with or before any 22 order of remittitur. That order gives the other party the option to accept the remittitur and reduce the amounts in the final judgment or to request a new trial. Seeking a remittitur is not a waiver of the right to appeal a final judgment or even a conditional new trial order that is adverse to the Defendant due to the rulings on the motions made prior to the motion for remittitur. See Aills v. Boemi, M.D., 990 So.2d 540 (Fla. 2d DCA 2008)(case reversed for new trial on appeal from order denying directed verdict and new trial, but granting remittitur); see also Aills v. Boemi, M.D., 29 So. 3d 1105 (Fla. 2010)(reversing in part, but not on grounds related to the jurisdiction of the Second District to review the issue); Regency Lake Apartments Associates, Ltd. v. French, 590 So. 2d 970 (Fla. 1st DC 1991)(appeal challenging directed verdict after remittitur was granted). The statutory grounds for remittitur, however, also serve as guidance for when a new trial should be granted. Since 1986, the Legislature has required trial judges to engage in “close scrutiny” of jury awards to assure that they are neither excessive nor inadequate. See § 768.74(3), Fla. Stat. The statute lists the following factors to consider: (a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact; (b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable; 23 (c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture; (d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and (e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons. Fla. Stat. § 768.74(5)(a)-(e). F. Renewed motion for directed verdict on claims for punitive damages. The standard for granting a directed verdict on a claim for punitive damages is essentially the same as for any other claim. See R.J. Reynolds Tobacco Company v. Ledo, 274 So. 3d 416, 417 (Fla. 3d DCA 2019). The differences arise not so much in the overall standard, but rather in the quantum of evidence necessary for the issue to reach the jury because entitlement to punitive damages must be proven by clear and convincing evidence. §§ 768.72(2), 768.725, Fla. Stat.; Southstar Equity, LLC v. Lai Chau, 998 So. 2d 625, 632 (Fla. 2d DCA 2008). The evidence also needs to create a jury question on the high bars set by section 768.72, Florida Statutes. The employee’s conduct must first meet these standards: 24 “Intentional misconduct” for that statute “means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage. “Gross negligence” means that “the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” Id. at (2)(a),(b). In this case, the torts are not matters of negligence. They are intentional torts of false imprisonment and battery. Thus, although the Plaintiffs actually pleaded none of these statutory elements, the awards in this case should not have been allowed to be based on gross negligence as compared to intentional misconduct. But this Court ruled otherwise. Even under the gross negligence standard, the Defendant submits that it is entitled to relief on its renewed motions for directed verdict. It is also entitled to a directed verdict because there was no evidence that a “director” or “officer” of Johns Hopkins committed any of the acts specified in section 768.72(3), Florida Statutes. The purported “manager” involved in one of the claims was merely employed as a “risk manager” in a risk management department. The Plaintiffs presented no evidence of that person’s job description or authority within the corporation. 25 G. Motion for new trial based on punitive damages contrary to the manifest weight of the evidence. Although it appears more common for a claim of punitive damages to be reversed for lack of proof, logically a motion for new trial based on the jury’s determination that the defendant’s conduct warrants punitive damages should be reviewed similar to other claims. Awards of damages have been so reviewed. See Arab Termite and Pest Control of Fla., Inc. v. Jenkins, 409 So. 2d 1039, 1043 (Fla. 1982). As with the standard for a renewed motion for directed verdict, the differences in the ordinary motion and one involving a claim for punitive damages arise because of the high statutory bars and the clear and convincing standard of proof. H. Motion for new trial based on errors occurring during the trial relating to punitive damages. “A new trial may be granted to all or any of the parties on all or a part of the issues.” Fla.R.Civ.P. 1.530(a). “This provision grants the trial court ‘broad’ authority to correct ‘unjust’ verdicts.” Brown v. Estate of Stuckey, 749 So. 2d 490, 495 (Fla. 1999). The same standard that governs granting new trials based on errors in the liability phase of trial applies equally to the punitive damages phase. § 59.041, Fla. Stat. (2023); Bankers Multiple Line Ins. Co. v. Farish, 464 So. 2d 530, 533 (Fla. 1985) (granting new trial on punitive damages in intentional tort claim because “even though liability and punitive damages contain the common elements of 26 willfulness, a finding of liability for compensatory damages does not dictate an award of punitive damages. The jury in this case could have been confused.”). I. Motion for new trial based on excessive awards of punitive damages. Consistent with the standard for a new trial based on excessive compensatory awards, a trial court may order a new trial on excessive awards of punitive damages if there was an “impropriety of the verdict” or “an independent determination that the jury was influenced by considerations outside the record.” Wackenhut Corp. v. Canty, 359 So. 2d 430, 436–37 (Fla. 1978). In this case, among other reasons, the impropriety in the amount of the compensatory damages affects all of the claims for punitive damages. J. Motion for remittitur of punitive damages. A motion for remittitur for punitive damages is allowed in Florida. See Coates v. R.J. Reynolds Tobacco Company, 2023 WL 106899, at *2 (Fla. Jan. 5, 2023). The issue in this case may be complicated by the fact that this Court allowed the unpleaded “specific intent” issue to be tried in a mini-trial during the second phase of the bifurcated proceeding, which Defendant submits is a clear error of law and a violation of due process. That said, “[w]hen a trial court reviews an award of punitive damages under section 768.74, the statute plainly requires that the amount 27 awarded must ‘[bear[ ] a reasonable relation to the amount of damages proved and the injury suffered.’ § 768.74(5)(d).” Coates, 2023 WL 106899, at *3. This “reasonable relation” requirement is not measured against an excessive award of compensatory damages; it must be related to the amount of damages actually proved and the injury actually suffered.” The Due Process Clause of the Fourteenth Amendment to the Federal Constitution echoes section 768.74’s “reasonable relation” requirement and, of its own force, limits the amount of punitive damages that may constitutionally be imposed on a defendant. Philip Morris USA v. Williams, 549 U.S. 346, 353 (2007); State Farm Mut Auto. Ins. Co. v. Campbell, 538 U.S. 408, 423 (2003); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75 (1996); Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1264 (Fla. 2006). The U.S. Supreme Court requires courts to consider three guideposts in determining whether the award of punitive damages is unconstitutionally excessive: (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. Campbell, 538 U.S. at 418. 28 In this case, the $50,000,000 in punitive damages bears no relationship to the injuries or the damages actually proved to be related to the false imprisonments and the battery and violates due process. Similar to a motion for remittitur for compensatory damages, this motion is only requested after the denial of motions for directed verdict or new trial. The Defendant intends to appeal the denial of those orders as adverse rulings from any final judgment or new trial order entered on a motion for remittitur of punitive damages. II. Issues affecting all claims A. This Court erred in the application of Chapter 39 immunity affecting nearly every claim in the case. Prior to trial, this Court granted a summary judgment determining that the Defendant had statutory immunity under section 39.203, Florida Statutes, for reporting the claim to DCF, for the investigation of that claim, and DCF’s decision to pursue a dependency proceeding against Beata and Jack Kowalski. In exchange for obeying this statute and for cooperating in good faith with both the Dependency Court and DCF, the Defendant was entitled to immunity for “any act authorized or required by Chapter 39.” Those acts included keeping Maya Kowalski in the Defendant’s hospital even after she was ready for discharge in October. Those acts included waiting for a transfer order to a facility that was better equipped 29 and staffed to provide the therapies that Maya Kowalski needed. That order never arrived. The Defendant could not transfer Maya Kowalski to a hospital that provided ketamine infusions because none were known to exist and the Dependency Court did not enter any order authorizing that treatment. The immunity should have extended to complying in good faith with the multiple orders entered by the Dependency Court regarding visitation and communications. But this Court interpreted the protection given to the hospital very narrowly and allowed negligence claims as well as intentional torts to be litigated for actions for which the Defendant was entitled to immunity. To be clear, the Defendant is not maintaining that statutory immunity would give it a free pass to torture a child or place a child in a dungeon. But acts like placing Maya Kowalski in an ordinary hospital room to be video recorded to confirm whether her actions are consistent with CRPS or are instead consistent with a psychological problem that may have been caused or enhanced by her mother’s behavior should be acts for which the Defendant has immunity. So too should the act of keeping the child in the hospital when the Defendant expects that the dependency proceeding, based on the investigation commenced by its hotline report, will be filed imminently. Photographs taken to document her skin 30 condition before she left for court where her skin could be affected should be immune. The Defendant is not claiming that a typical malpractice claim for treatment in a hospital should be exempt. But after the entry of the shelter order, the parents’ right to make medical decisions did not extend to demanding ketamine infusions for their daughter at the hospital when the prior infusions were a major component of the reason the DCF filed its proceeding. The Kowalskis and their attorneys could have filed an emergency petition to try to convince the Dependency Court that it should authorize such treatments, and then the child could have been transported to Dr. Hanna’s office for that treatment. But they did not. And there is little reason to believe that a judge considering evidence that would have established that the standard treatment for CRPS in hospitals across America did not include high- dosage ketamine infusions would have granted that motion. A judge learning that this process was only being performed by limited group of physicians, more as a matter of experimentation than as a treatment modality “acceptable and appropriate by reasonably prudent similar health care providers,” See §766.102(1), Fla. Stat., was very unlikely to resume high-dosage ketamine infusions. 31 Thus, the medical negligence claim in this specific case is a claim for which this Defendant should have immunity because any ultimate decision to reintroduce that treatment following the shelter order was a matter for the Dependency Court. The claims for intentional infliction of emotional distress would not be claims for which the Defendant would be entitled to immunity if proven. The problem in this case is that conduct interrelated with or heavily affected by the rules and regulations imposed by the Dependency Court and DCR was often used to confuse the jury and to allow the admission of evidence that was not extreme and outrageous conduct intolerable in a civilized community. On September 8, 2023, just before trial, the Plaintiffs filed a motion in limine to exclude any mention of the DCF, Chapter 39, and the Dependency Proceeding at trial. The Court denied that motion, but took the position that it would only allow very limited reference to those proceedings. The Defendant recognizes and agrees that litigation immunity prevented use of testimony from that case as evidence against a party to prove liability, and likewise agrees the Court had discretion to limit extensive discussion of legal arguments and rulings in that case. But the fact that the proceeding existed and had a major impact upon the stress 32 in the family, that the Kowalskis attended multiple hearings that upset them, and the full explanation of the hearing that triggered Beata Kowalski’s suicide became off limits after the motion in limine was heard. This Court, under the urging of the Plaintiffs, transformed a statute giving the Defendant a shield of immunity into a sword that was repeatedly used by Plaintiff’s counsel. “Objection, Chapter 39” was used to prevent the jury hearing relevant and necessary testimony and evidence including, for example, the December report of Dr. Sally Smith. The Defendant believes the transcript will show instances where the Court limited evidence based on Chapter 39 on its own motion. The Court repeatedly told the jury that the Defendant was not responsible for Maya Kowalski’s long stay in the hospital. But Plaintiffs repeatedly presented witnesses or made statements in front of the jury about the child being “trapped” in the hospital. Maya Kowalski both in court and on the telephone recordings with her mother was explaining how desperately she wanted to go home to her mother. The jury clearly did not understand the nuances of immunity under the instructions given by the Court. The limitations placed on this issue made it impossible for the Defendant to keep the jury from being enraged about events and circumstances over which the Defendant had no control and no legal responsibility. This is most evident in the three claims for 33 intentional infliction of emotional distress, but it also impacted the claims for false imprisonment and battery. Given the size of the monetary awards it appears to have affected all of the claims. The Defendant submits that this Court erred in failing to grant broader immunity to this Defendant and in failing to permit a fuller explanation from the witnesses, including the DCF witnesses, about that lawsuit and its impact on the family. This error warrants a new trial at a minimum. This error does not impact this one case alone. Especially in a case where a hospital has recognized, even before the entry of a shelter order, that a child needs specialized rehabilitation better available at other hospitals and that the child is ready for transfer, its cooperation with a dependency court that never enters an order allowing it to transfer the child to a hospital with a specialized in-patient or out-patient program during the following three months should not subject it to the risk of a judgment. It certainly should not risk the possibility of the huge judgment the jury’s verdict would require in this case. If this judgment is not set aside, no hospital in Florida will be willing to keep a child in DCF custody in its facility once the child is ready to be discharged to foster care. The hospitals will have little option but to seek an order from the dependency court transferring the child to a DCF 34 medical foster care facility operated under the umbrella of the State’s sovereign immunity. 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. The Defendant filed a motion to limit the use of an improper closing argument based on a method that deceptively allowed Plaintiff’s counsel to suggest awards, as reasonable awards, when they are many times higher than the maximum legal range in which the jury was actually free to operate. By dividing the damages into hourly amounts for components of the overall award of noneconomic damage and employing a period of 8 hours or longer for each day of a plaintiff’s lifetime, this method can make an award exponentially higher than is appropriate. And in this case, Plaintiff’s counsel often used 12 to 14 hours per day at rates of $100 an hour to present, with a straight face, aggregate damages many times higher than the amount a reasonable jury would normally award. (See, Appendix A). For Maya Kowalski’s claim in the aggregate, Plaintiff’s counsel divided noneconomic damages into past and future claims for “pain and suffering,” and for “mental anguish” and for “loss of the capacity to enjoy life.” These separate claims were then given an hourly value of $100 per hour which resulted in a daily total damage (undisclosed to the jury) of 35 $8400 per day – for a lifespan of 70.42 years. The aggregate amount requested by Plaintiff’s counsel, resulted in amounts spread among the various claims for her, that totaled $64,496,000 just for noneconomic damages. Without considering income on that amount that award would pay $915,876 per year or more than $2500 per day for every day from the time of this event until she dies. Even more shocking, given Mr. Kowalski’s life expectancy, Plaintiff’s counsel recommended $2700 per day for Mr. Kowalski for a total of $26,640,862 – but the jury gave him $50,000,000. That is more than $5,200 per day (and it too is awarded in a lump sum that will produce extensive income over his lifetime). Within about an hour of the commencement of deliberations, despite the fact that the jury needed to review an immense collection of exhibits introduced into evidence but not shown by either party during the trial, under the leadership of Juror #1, the jury was already asking the Court to provide the documents and testimony that were used to support the huge aggregate award. Ultimately, the jury followed the argument of Plaintiff’s counsel, instead of the law, and entered “yes” for every liability box and awarded damage amounts that are patently excessive and irrational when examined claim by claim. The award for Mr. Kowalski for past medical bills totals $1,513.498, which clearly demonstrated that the jury 36 duplicated damages. The award of $5,000,000 for insurance fraud when Plaintiff’s counsel suggested $1 (and has even given this Court a proposed judgment for only $1), demonstrates that the jury was totally lost in passion and prejudice when considering the issues in this case. Simply put, this method was an artifice that misled the jury. A jury influenced by prejudice and passion has produced a verdict so unreliable that a new trial is need on all issues. 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. At the beginning of the trial, Maya Kowalski also had a claim for “negligent training.” This claim, which was not eliminated until a directed verdict immediately before closing arguments, allowed the jury to hear extensive, confusing, and ultimately irrelevant evidence that misled the jury and prejudiced the Defendant. This issue is addressed in greater detail in the motions directed to Count 8, medical negligence. But this legal theory in Count 14C never should have survived to affect even the first day of trial. And at the end of the Plaintiff’s case, this Defendant was entitled to a directed verdict. The claim was presented as a common law claim of negligent training by a hospital that is a statutory “healthcare provider” for training given to 37 doctors and nurses who are statutory “healthcare providers.” It could never have been a common law simple negligence theory. This “smorgasbord” approach to pleading produced a confusing and open- ended, unauthorized legal theory that allowed an extensive amount of irrelevant evidence about “negligence” on the part of the management and staff of the hospital to be presented to the jury. This evidence was then used by Plaintiff’s counsel as if it were evidence of intentional acts of extreme and outrageous conduct and as if it were relevant to proving the distinctly different conduct by a managing agent necessary for corporate punitive damages. This Court correctly, albeit belatedly, granted a directed verdict on this claim at the very end of the case. By then the damage had been done, and that damage is reflected throughout the jury’s verdict. The error was especially harmful as it relates to Dr. Corcoran’s testimony in the Plaintiff’s case, and all that followed from that testimony in the Defendant’s case and, even more so, in rebuttal. Dr. Corcoran could never have taken the stand on a liability theory unless Count 14C was tried. A theory of management negligence was never a part of the claim for medical negligence. This error requires a new trial for the entire case or at least for major portions of the claims made by Maya Kowalski and the Estate. D. The grant of additional time to Plaintiffs in this case severely prejudiced the Defendant. 38 After the Defendant had carefully used limited time on cross- examination in the Plaintiff’s case in order to have sufficient time for its own case, this Court granted the Plaintiff additional time for its case on not one, but two occasions. Coupled with the inefficient manner in which plaintiffs’ counsel introduced exhibits and the testimony of witnesses, these extensions placed the Court behind on its timeline that required this case to end on November 9, 2023. In the end, the Defendant had many hours of time remaining – theoretically – when it rested. The Defendant knew it had “time” but no remaining days to present more witnesses or, for example, to present several hours of the video from the room on the seventh floor that contained the video and EEG equipment. In retrospect, given that it is clear that the jury did not review exhibits such as the EEG video clips, additional testimony would have been very important in preventing the runaway verdict on compensatory damages and punitive damages. But it also would have forced a mistrial because it would have caused the jury to have no time to deliberate. By taking professional steps to fit this trial into the timeline required by the Court, but skewed by the extra time given to the Plaintiff, the Defendant received an irrational verdict from the jury. It was then compelled to try both a substantive component and the usual damages component of the bifurcated punitive damages claim 39 in an abbreviated mini-hearing that resulted in a $50,000,000 award of punitive damages, and findings on “specific intent” that are unsupportable under either of the two optional burdens of proof this Court gave to the jury. E. Dr. Eli Newberger’s deposition testimony over objection. Multiple depositions were read or played to the jury during this trial. The parties submitted written objections a day or two prior to the use of a deposition in open court. This Court provided written rulings on the objections. In most cases, this process worked well. But on some occasions, and Dr. Eli Newberger’s depositions are the worst example, this Court allowed testimony to be presented to the jury that should have been excluded. This testimony included “evidence” that was extremely prejudicial. His trial testimony has been transcribed and will be filed with this motion. It is cited in this motion as (T.**). Dr. Newberger is an elderly physician. He graduated from medical school in 1966 and gained his first experience in the Vietnam War. (T.23). He is a general pediatrician who is clearly qualified to testified about child abuse issues. When younger he taught at Harvard Medical School and served on the staff of Boston Children’s Hospital. (T. 5-6). But he retired at the end of 1999, and never had an actual pediatric practice. (T.7). He no longer examines more than one child a month, and the last child he 40