1st DCA Case denying request for cert review of a MSJ denial predicated on statute of limitations

In an opinion issued today in  Abbey v. Patrick, the First District denied a cert petition request from a doctor who claimed he had a valid statute of limitations defense against a medical negligence suit.  The Court held that this was not an extraordinary case deserving of cert review, and did not reach the merits of whether there was a valid statute of limitations defense.  The Court may have been correct that this was not an extraordinary case that cannot be corrected on direct appeal,  but one wonders whether the legislature may want to visit this type of case.  The practical result of this ruling, assuming there is a valid statute of limitations defense, will be either putting the defense to the cost of a full trial, a cost they will probably never recover even if they later prevail on appeal, or raising the cost and risk of proceeding so much that a settlement is reached because of the plaintiff’s renewed leverage.  Perhaps, particularly in cases in which there are no material facts in dispute, so that the case is ripe for summary judgment, it would be much more efficient to allow a direct interlocutory appeal from a denial of a motion for summary judgment.

Posted on September 14th, 2009 by Woodring Law, filed under Uncategorized
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