Dunne By and Through Dunne v. Somoano

Citation550 So.2d 5,14 Fla. L. Weekly 1434
Decision Date13 June 1989
Docket NumberNo. 87-1272,87-1272
Parties14 Fla. L. Weekly 1434, 14 Fla. L. Weekly 2500 Vanessa DUNNE, a minor, By and Through her parents and natural guardians, Ethel DUNNE and Thomas Dunne, and Ethel Dunne and Thomas Dunne, individually, Appellants, v. Julio SOMOANO, M.D.; Julio Somoano, M.D., P.A.; Physicians Protective Trust Fund; and Florida Patient's Compensation Fund, Appellees.
CourtCourt of Appeal of Florida (US)

Barnett, Clark & Barnard and James K. Clark, Miami, for appellants.

Thomas R. Post and Evan J. Langbein, Miami, for appellee Florida Patient's Compensation Fund.

Stephens, Lynn, Klein & McNicholas and Debra J. Snow and Robert M. Klein, Miami, for appellees Julio Somoano, M.D., and Julio Somoano, M.D., P.A. and Physicians Protective Trust fund.

Before HUBBART, FERGUSON and LEVY, JJ.

PER CURIAM.

The plaintiffs in this medical malpractice case appeal from a jury verdict finding for the defendant obstetrician.

As a result of complications arising during her delivery, Vanessa Dunne was born with brachial plexus palsy. The defense expert conceded that Vanessa's injury was a result of Dr. Somoano's acts during birth. The issue at trial was whether Dr. Somoano's actions fell below the standard of care in the community for physicians of his specialty.

Dr. Somoano's testimony was conflicting. When called as an adverse witness by the plaintiffs, the doctor responded to leading questions on direct examination by admitting that he applied pressure to the baby's head and tried to turn the head in an attempt to rotate the infant's shoulders after realizing that the complication known as shoulder dystocia was present. Expert witnesses for both the plaintiffs and the defendant testified that applying pressure to a baby's head to turn it, when shoulder dystocia is present, may cause nerve damage and constitutes negligence. On cross-examination by defense counsel, and contrary to his testimony on direct examination, Dr. Somoano testified that upon discovering that the baby had shoulder dystocia he enlarged the episiotomy, placed his hands behind the baby's armpits, and attempted to rotate the child--an indisputably non-negligent act. There was evidence that the palsy could have been caused by actions of the physician during the complicated delivery other than a negligent act.

Where there is testimony at trial to support a jury verdict that the defendant's conduct did not fall below the standard of care in the community, the court is correct in refusing to direct a verdict, Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940 (Fla. 3d DCA 1987) (directed verdict proper only where record conclusively shows absence of facts or inferences from facts to support a jury verdict), rev. denied, 511 So.2d 299 (Fla.1987); Telesphere Int'l, Inc. v. Scollin, 489 So.2d 1152 (Fla. 3d DCA 1986) (directed verdict may not be granted if there is any evidence to support the position of the party moved against), or grant a new trial. Martin v. Stone, 51 So.2d 33 (Fla.1951) (disputes and conflicts in testimony are jury questions and if evidence appears in the record to support verdict rendered, trial court is without authority to substitute its conclusions); Nunberg v. Brodsky, 224 So.2d 727 (Fla. 3d DCA 1969) (where evidence is conflicting and Affirmed.

verdict is not manifestly against weight of evidence, court may not...

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6 cases
  • Olmsted v. Emmanuel
    • United States
    • Florida District Court of Appeals
    • March 27, 2001
    ...Chase & Co. v. Little, 116 Fla. 667, 156 So. 609, 610 (1934); Ramsey v. Jonassen, 737 So.2d 1114 (Fla. 2d DCA 1999); Dunne v. Somoano, 550 So.2d 5, 7 (Fla. 3d DCA 1989). However, in order to work an estoppel, the parties must be the same, the same issues must be involved, and the position a......
  • Olmstead v. Emmanuel
    • United States
    • Florida District Court of Appeals
    • March 27, 2001
    ...Chase & Co. v. Little, 116 Fla. 667, 156 So. 609, 610 (1934); Ramsey v. Jonassen, 737 So. 2d 1114 (Fla. 2d DCA 1999); Dunne v. Somoano, 550 So. 2d 5, 7 (Fla. 3d DCA 1989). However, in order to work an estoppel, the parties must be the same, the same issues must be involved, and the position......
  • Burger King Corp. v. Barnes, 95-1408-CIV.
    • United States
    • U.S. District Court — Southern District of Florida
    • March 23, 1998
    ...inconsistent with prior contentions to the prejudice of the adverse party who acquiesced in the former position. Dunne v. Somoano, 550 So.2d 5, 7 (Fla. 3d DCA 1989). Application of the doctrine also requires that the inconsistent party's initial position have been successfully maintained. I......
  • Ramsey v. Jonassen
    • United States
    • Florida District Court of Appeals
    • May 28, 1999
    ...by the act of the party claiming the estoppel, or where the positions taken involved solely a question of law. See also Dunne v. Somoano, 550 So.2d 5 (Fla. 3d DCA 1989); Khan v. Simkins, 687 So.2d 16 (Fla. 3d DCA 1996); Moore v. State, Dept. of Revenue, 536 So.2d 1050 (Fla. 1st DCA Thus, ju......
  • Request a trial to view additional results
1 books & journal articles
  • Legal theories & defenses
    • United States
    • James Publishing Practical Law Books Florida Causes of Action
    • April 1, 2022
    ...(“Thus, the identities of the real parties in interest requirement is missing and judicial estoppel cannot apply.”). 4. Dunne v. Somoano , 550 So.2d 5, 7 (Fla. 3d DCA 1989) (“Those doctrines prevent a party from pleading a position inconsistent with prior contentions.”), rev. denied , 563 S......

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