FJA Journal - March_April 2017 by Florida Justice Association

JOURNAL FLORIDA JUSTICE ASSOCIATION

Florida Justice Association • March/April ® 2017 • #595

FLORIDA JUSTICE ASSOCIATION

ANNUAL

CONVENTION

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MARCH/APRIL 2017 -March NO. 595 2014 March 2014

CONTENTS HIGHLIGHTS

On the Cover:

Federal courts are ignoring Florida substantive law on insurance bad faith

A law firm’s fee contract was unconstitutionally impaired by the legislature’s drastic limitation on attorney’s fees in a claims bill

What you need to know about the DOJ-Takata airbag plea deal

Arguing about an opponent’s right to assert or to defend against a claim is not a proper subject for closing argument

Can an insurer’s claims-handling decision-making practices rise to the level of actionable intentional infliction of emotional distress?

IN THIS ISSUE

The Supreme Court has spoken…so where are we with Daubert?

Amendment 7 survives another attempt to limit patient access to records of adverse medical incidents

pg 34

pg 48

5 President’s Message — Jimmy Gustafson 6 Executive Director’s Message — Paul Jess 8 Special Focus: FJA 2017 Annual Convention 12 Cases and Commentaries — Kenneth D. Kranz 14 Legislative Notes 18 Tips for Auto Practitioners — Dale Swope 22 Insurance — Gregory Yaffa 26 Medical Malpractice — Scott R. McMillen and Allison McMillen 30 Products Liability — William C. Ourand 34 Evidence — Matt Schultz 40 Daubert: A War Continues - G.C. Murray, Jr. 42 Civil Procedure — Roy D. Wasson 44 Closing Argument — Philip M. Burlington, Barbara Green and Christopher V. Carlyle 48 FJA Appellate Practice Section – Bryan Gowdy 54 FJA Young Lawyers Section – Fay O. Pappas, Jeffrey M. Liggio, Michael K. Bailey and Olivia Liggio 58 Member Outreach 62 EAGLE 65 CLE CALENDAR 66 Index 68 Call for Nominations

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2016-2017 FJA OFFICERS, EXECUTIVE COMMITTEE AND BOARD OF DIRECTORS PRESIDENT James W. Gustafson, Jr. PRESIDENT-ELECT Dale M. Swope TREASURER Lake H. (Trey) Lytal, III SECRETARY Leslie Mitchell Kroeger

INTERIM EXECUTIVE DIRECTOR Paul Jess EXECUTIVE COMMITTEE Laurie Briggs Tiffany M. Faddis Christopher N. Ligori Todd J. Michaels Eric Romano

IMMEDIATE PAST PRESIDENT Todd E. Copeland

DIRECTORS 2015-2017 Hubert R. Brown William T. Cotterall Clifton C. Curry, Jr. Tiffany M. Faddis Philip A. Gold Jason F. Lamoureux Damian B. Mallard Todd J. Michaels H.K. Skip Pita Anthony Quackenbush Waylon Thompson Nicole C. Vinson Gregory M. Yaffa

If you are a Paralegal Member of the FJA, your Membership Includes Access to the Paralegal List Server

DIRECTORS 2016-2018 Vanessa Brice Laurie Briggs David C. Dismuke Elizabeth Finizio Steven Jaffe James L. Magazine Daniel A. Mowrey H. L. Larry Perry Matthew N. Posgay Daniel Vazquez Steve Watrel Jason Whittemore

DIRECTORS AT LARGE P. Hutchison Brock Stephen F. Cain Cameron M. Kennedy Christopher N. Ligori Kenneth J. McKenna Curry Pajcic Eric Romano PRESIDENTIAL APPOINTMENTS Mike Morgan AMICUS CURIAE COMMITTEE Phil Burlington APPELLATE PRACTICE SECTION Adam Richardson WORKERS’ COMPENSATION SECTION Richard E. Chait YOUNG LAWYERS SECTION Jonathan Gilbert Heather Freeman WOMEN’S CAUCUS Fay O. Pappas Mallory R. Widgren

Network with other FJA paralegal members and ask your most pressing questions. To sign up for the

JOURNAL STAFF

Paralegal List Server, contact the FJA

EDITOR-IN-CHIEF Kenneth D. Kranz

Membership Department at (850) 521-1093.

JOURNAL COORDINATOR Jan Brown

MARKETING COORDINATOR Kalon Hopkins

LOCAL TLA REPRESENTATIVES Shannon Del Prado James W. Guarnieri Scott L. Henratty Daniel A. Iracki Gloria Seidule William D. Umansky Bernard F. Walsh AAJ OFFICER Julie Braman Kane AAJ BOARD OF GOVERNORS Sean C. Domnick Brenda Fulmer Rodney G. Gregory James R. Holland Nicholas C. Johnson Ricardo Martinez-Cid Herman J. Russomanno Andrew Weinstein JeanMarie Whalen Edward H. Zebersky AAJ STATE DELEGATES Troy Rafferty Clancey Bounds Daryl D. Parks

PRESIDENT’SMESSAGE

Thank You For Helping to Make a

REAL DIFFERENCE by FJA President Jimmy Gustafson

t has been a tremendous honor to serve as President of the Florida Justice Association. I want to thank you for allowing me the privilege of serving our organization and our profession.

As I write this, the Florida Legislature is in the middle of the 2017 Session. While we have enjoyed victories in the committee process, the final outcome is far from determined. I can say that lawmakers serving in the Halls of Power at the Capitol have been much more welcoming to the Florida Justice Association than we have been accustomed to in the past. That’s due to the commitment you have made over the past year. We decided to concentrate our efforts on the 2016 election as it promised to be the biggest one in many years. We had an opportunity to elect Florida Justice Association members and friends in an election that will shape our state’s direction for many years. We marshaled all our forces to secure resources to ensure we could make our influence felt. We were successful, and you sure can tell the difference here. If you haven’t been here — especially those of you who served here in dark times — you need to come see it for yourself. Because you built this. We forged a partnership with Senate President and House Speaker, and with the minority leaders of the House and Senate, and supported strong candidates — civil justice champions all —across party lines. Around the state, we won race after race after race, and those

candidates now serve on committees that decide issues important to real Floridians, not just to carpetbagging corporations and self serving insurance companies seeking to take advantage. Outstanding FJA members like Erin Grall and Sean Shaw walked neighborhoods during the hot summer days, shared their vision with their neighbors, and got elected to the Florida House of Representatives. Former FJA President Gary Farmer brought his EAGLE sculpture to the Florida Senate, where he now protects the interests of the citizens of Broward County. Through the generosity of our members, the Florida Justice Association made the difference for many candidates. We happily ruined a lot of election parties that the corporate and insurance interests had planned, and made this session one where they didn’t just walk across the street and get whatever they wanted. Thanks to you, the people have many voices here now. We were so successful in the elections — and so far during this legislative session — that supporters of Florida’s big business and insurance interests openly complain about our success at the Capitol in 2017, with one telling a reporter, “The trial bar is very politically influential these days.” Their complaints are a badge of honor, confirmation that together we have made a real difference for Floridians. The Florida Justice Association has a great legacy of having member leaders focused on improving the organization and its standing. It was a goal of my predecessors, and it was definitely a goal of mine. As I turn over the gavel to Dale Swope, I know he will do the same. We are going to be in good hands.

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EXECUTIVEDIRECTOR’SMESSAGE

SEE YOU AT

CONVENTION! by Paul Jess, FJA Interim Executive Director

his is the Annual Convention edition of our FJA Journal, and I hope you have made plans to join us sometime during the June 14 -17 event in St. Pete Beach. If you haven’t made plans to attend, it’s not too late! You can register online at the FJA website and make your hotel reservations directly with the Don CeSar Hotel (727) 360-1881. Alternatively, call Lee Phillips at the FJA office (850) 521-1033, and she can get you registered. We plan to have a ton of fun at this year’s convention, as we honor our outgoing President, Jimmy Gustafson, and welcome our incoming President, Dale Swope. In addition to the great seminars and exciting social events, you will learn from other FJA leaders how you can help your clients and help your practice through your involvement with FJA.

How does membership in the FJA benefit your clients and improve your practice? Well, for one thing, the FJA helps keep the court house doors open for your clients and you. In fact, the FJA is trying to widen those doors and make them open more easily! By the time you read this, the 2017 Legislative Session should be in its final days or may even be over. However, I am writing in the middle of the sixth week of the Session. For the first time in over two decades, we are on the offensive, working to get pro-civil justice bills passed rather than just playing defense. A bill that would require bodily injury liability insurance in limits of at least $25,000 per person and $50,000 per incident passed the House Insurance and Banking Subcommittee. A bill that would provide for prejudgment interest in all personal injury cases passed the Senate Rules Committee. Bills that would allow for reasonable attorney’s fees in workers’ compensation cases and increase benefits for injured workers are on the move through the committee process. We don’t yet know if these bills, or any of them, will ultimately become law this year, however, we do know that this is a dramatic improvement in the political and legislative climate thanks to the hard work, commitment and sacrifices of our FJA leaders and members like you. It’s a great time to be a trial lawyer and a great time to be a member of the FJA! However, there is only one way to continue this momentum into future years. We must increase our membership in the Florida Justice Association! We must retain members like you. We must recruit new members – and we will. The Florida Justice Association is about to begin a membership campaign that will dwarf anything we have attempted before. And the secret weapon that will be the driving force behind that campaign is: YOU ! We will be asking you, and all our members, to help us keep the members we have and recruit new ones. Why not start with this Convention in June? Find a trial lawyer in your area who is not a member and invite him or her to the Convention. We have many fun social events that are not “members-only.” There are two free receptions, two ticketed luncheons and the ticketed Presidential Dinner they can attend without becoming a member. If they join the FJA, they can also register and attend the excellent members-only CLE programs. We can even help them apply and get approved right on the spot at Convention! So make sure to attend the Convention – and bring a non-member friend or acquaintance. Go online right now and register. See you at Convention! 6 | March/April 2017 | www.FloridaJusticeAssociation.org

Insurers should provide care.

We fight to make sure they do.

Managed Care Abuse

www.FloridaJusticeAssociation.org | March/April 2017 | 7

SPECIALFOCUS:2017ANNUALCONVENTION

ANNUAL CONVENTION

The BEST CLE in the state + lively social events + the gathering of FJA’s top leadership = FJA Annual Convention & Expo. The FJA’s Annual Convention gives you access to a wealth of educational resources and prime networking opportunities. The Annual Convention is the event of the Summer!

AND EXPO

DON’T MISS... OUR PREMIER CLE designed to expand the knowledge base for attorneys & paralegals THE OPPORTUNITY to elect new FJA leadership at the voting-member-wide elections THE ACCESS to expand your network at our various social events THE PROSPECT of finding new business partners from the pool of trusted event sponsors & exhibitors

SCHEDULE OF EVENTS 6.13/TUESDAY............Women’s Caucus Section Retreat 6.14/WEDNESDAY.....Exhibits Open | Advanced Trial Skills Seminar | Young Lawyers Seminar | General Membership Meeting | Meet the Candidates Reception 6.15/THURSDAY.........Exhibits Open | Advanced Trial Skills Seminar | Section Elections | Justice Luncheon | FJA Board of Directors Elections | EAGLE/PAC Reception | Annual Dinner Honoring President Jimmy Gustafson | Dessert Reception 6.16/FRIDAY...............Exhibits Open | Annual Review Seminar | Civil Litigation for Paralegals and Legal Assistants | Presidential Luncheon 6.17/SATURDAY.........FJA Board of Directors Meeting For Times And Updates, Please Visit The FJA Website Annual Convention Page

ADVANCED TRIAL SKILLS SEMINAR

PERFECTING YOUR COMPETITIVE EDGE

Program Co-Chairs: Leslie M. Kroeger, Cohen Milstein Sellers & Toll PLLC., Palm Beach Gardens, and Angela E. Rodante, Swope, Rodante, P.A., Tampa Jury Trials in the Age of Information Overload and Fake News The Trump Administration: Threats and Opportunities for the Civil Justice System Closing the Deal in Opening Direct Examination Boecher, Elkins & Katzman: Leveling the Playing Field of Discovery & Admissibility of Expert Financial Discovery Effectively Dealing With Difficult Witnesses And Clients

YOUNG LAWYERS SEMINAR

MAKING YOUR ORDINARY CASE – “EXTRAORDINARY!”

Program Co-Chairs: Heather Freeman Jones, Anderson & Anderson, Tampa, and Olivia Liggio, Liggio Law, West Palm Beach Identifying, Developing and Maximizing the Typical Auto Negligence Case Proposals for Settlement Creative Ways to Enhance Your Personal Injury Claims, Auto & Premises Consumer Collection Practices Medical Malpractice & Bad Faith: Making Your Ordinary Case – Extraordinary! RSD & Traumatic Brain Injuries: Symptoms, How to Identify Such Conditions, and How the Conditions Can Affect a Legal Case

ANNUAL REVIEW

2017 LEGISLATIVE CHANGES & NOTABLE CASES INFLUENCING YOUR PRACTICE

Program Co-Chairs: Jimmy Gustafson, Searcy Denney Scarola Barnhart & Shipley, P.A., Tallahassee, and Dale Swope, Swope, Rodante, P.A., Tampa Mandatory Bodily Injury Liability Insurance Workers’ Compensation Prejudgment Interest Assignment of Benefits

CIVIL LITIGATION

FOR PARALEGALS & LEGAL ASSISTANTS

Program Co-Chairs: Virginia Buchanan, Levin Papantonio, Pensacola, and Bonnie Stark, FRP, Searcy Denney Scarola Barnhart & Shipley, P.A., Tallahassee Ethics Why Settlement Planning is So Important Personal Injury Auto Negligence Cases; Document Management Software Organizing Medical Records Conducting Jury Research

SPECIALFOCUS:2017ANNUALCONVENTION

JOIN US at the legendary Don CeSar Hotel, the “Pink Palace” and sugary-sand beaches. Enjoy your time out of the office so you can rest and recharge in between the top-notch seminars you attend. AMENITIES The resort has six restaurants, 24 hour room service, lounges, ice cream parlor, and retail shops. Don CeSar features a day spa, fitness center, 2 swimming pools, and beach volleyball. CUSTOM BEDS, FREE WIFI Guest rooms have crown molding, custom wrought-iron beds with triple sheeting, sky-blue ceilings, and bathrooms with granite vanities. All rooms include free WiFi access and iHome docking stations.

REGISTRATION HIGHLIGHTS FJA Group Room Rate: Superior Rooms: $249 Discounted resort fee of $10 daily Make Reservations by 5.12.2017

Accommodations: The Don CeSar - St. Pete Beach 3400 Gulf Boulevard St. Pete Beach, FL 33706 727.360.1881

FJA CLE Department 850.521.1097 www.floridajusticeassociation.org

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CASES&COMMENTARIES

In Brief

By KENNETH D. KRANZ • FJA JOURNAL EDITOR-IN-CHIEF

n a pair of cases, the Supreme Court made it clear that an amendment asserting a new cause of action can relate back to the original pleading where the claim arises out of the same conduct, transaction or occurrence as the original; and it disapproved a line of cases to the extent that they established a bright-line rule that an amendment asserting a new claim can never relate back to the filing of the original pleading. Palm Beach County School Board v. Doe, So.3d , 42 FLW S23 (Fla. 1-262017); Kopel v. Kopel, So.3d , 42 FLW S26 (Fla. 1-26-2017). In a medical malpractice case involving a foreign body left inside a patient’s body, the foreign body presumption of negligence set forth in §766.102(3)(b), Fla. Stat., which shifts the burden of proof to the defendant to prove that no medical negligence occurred, is mandatory when a foreign body is found inside the patient’s body, regardless of whether direct evidence exists of negligence or who the responsible party is for the foreign body’s presence. Dockswell v. Bethesda Memorial Hospital, Inc., So.3d , 42 FLW S32 (Fla. 1-26-2017). The Court noted that “unlike the common law doctrine of res ipsa where direct evidence of negligence may defeat its application, the only prerequisite to applying the foreign-body presumption and [Florida Standard Jury] Instruction 402.4c is the ‘discovery of the presence of a foreign body’ in the patient’s body.” The FJA, represented by Roy D. Wasson, participated as amicus curiae. See Medical Malpractice column for more.

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The provisions of Art. X, Sec. 25, Fla. Const. (“Amendment 7”), which relates to patient access to records of “adverse medical incidents,” are not preempted and thereby made privileged and confidential under the Federal Patient Safety and Quality Improvement Act. Charles v. Southern Baptist Hospital, of Fla., Inc., So.3d , 42 FLW S79 (Fla. 1-31-2017). The Court reversed a decision in which the First DCA had concluded that medical incident reports requested in a medical malpractice action constituted privileged and confidential “patient safety work product” whose production was shielded by the Federal Act. The court also found that a health care provider cannot shield documents that are not privileged under state law by unilaterally determining where to place the documents under the voluntary reporting system created by the Federal Act. The FJA, represented by Philip Mead Burlington, participated as amicus curiae. See Medical Malpractice and Appellate Section columns for more. “Although the Legislature has complete discretion in its decision whether to grant a legislative claims bill, which is an act of grace, the claims bill may not unconstitutionally impair the preexisting contract between the claimant and the law firm for attorney’s fees, which may be recovered subject to the limits set forth in section 768.28(8), Florida Statutes (2007), Florida’s limited waiver of sovereign immunity.” Searcy, Denny, et al. v. State of Fla., So.3d , 42 FLW S92 (Fla. 1-31-2017). Section 768.28, Fla. Stat., provides that in tort actions against a governmental entity: “No attorney may charge, demand, receive or collect, for services rendered, fees in excess of 25 percent of any judgment or settlement.” The law firm involved

in this particular effort, which required a two-year post-judgment effort to obtain relief for the claimants after their medical malpractice judgment was capped because of the limited waiver of sovereign immunity, had a fee contract that provided for a contingency fee of 40 percent plus 5 percent if appealed. The contract also provided that if state or federal law limited the amount of fees, the amount owed would be that provided by law. The challenged claims bill that eventually passed (Ch. 2012-249, Laws of Fla.) provided for a payment of $15 million by the defendant, but it further provided that the payment of fees and costs from the funds awarded in the bill was not to exceed $100,000. The Court found that the contract between the law firm and its client clearly recognized the 25 percent statutory limitation on fees and the parties reasonably expected that fees would be paid pursuant to that limitation. Thus, it found, the much lower fee provision in the claims bill “significantly limited the gains reasonably expected from the contract.” “Where a legislatively imposed fee limitation substantially impairs a party’s preexisting contract for representation and payment of agreed-upon attorneys’ fees, especially when those fees meet the measure that the Legislature has found reasonable under section 768.28(8), we can discern no apparent benefit to the injured party attempting to obtain redress for injury pursuant to the contract. In this case, in order to obtain representation the … family agreed to pay fees in accord with the limits of sovereign immunity; and the family supports the claim for fees by [the firm] pursuant to that contract and the statute. … Nor do we see any significant or legitimate public purpose to be achieved by the limitation.” The court also held that the offending fee provision was severable from the claims bill. The FJA, represented by Jessie Leigh Harrell, Rebecca Bowen Creed, and Bryan Scott Gowdy, participated as amicus curiae. See Medical Malpractice column for more. The litigation privilege does not bar the filing of a claim for malicious prosecution that was based on adding a party defendant to a civil suit. Debrincat v. Fischer, So.3d , 42 FLW S141 (Fla. 2-9-2017). The Supreme Court noted that it has never held that the litigation privilege protects a litigant from a claim of malicious prosecution, and it approved the Fourth DCA’s decision below and disapproved the conflicting decision in Wolfe v. Foreman, 128 So.3d 67 (Fla. 3rd DCA 2013). “[T]he twenty-year statute of limitations found in section 95.11(1), Florida Statutes (2012) is applicable to the enforcement of a foreign judgment after it is recorded under the Florida Enforcement of Foreign Judgments Act (FEFJA).” Patrick v. Hess, So.3d , 42 FLW S174 (Fla. 2-16-3017). The Court approved the decision of the Second DCA below, and it disapproved the conflicting decisions in Haigh v. Planning Board, 940 So.2d 1230 (Fla. 5th DCA 2006) and New York State Commissioner of Taxation & Finance v. Friona, 902 So.2d 864 (Fla. 4th DCA 2005). See Civil Procedure column for more. The Florida Supreme Court declined to adopt certain legislative changes to the Evidence Code to the extent the legislated changes are procedural. In re: Amendments to the Florida Evidence Code, So.3d , 42 FLW S179 (Fla. 2-16-2017). The legislative amendments the Court declined to adopt include: 1) amendments to §§90.702

and 90.704, Fla. Stat., changing the standard of admissibility of scientific expert witness from the Frye standard to the Daubert standard and the standard found in Federal Rule of Evidence 702; 2) an amendment to §766.102(5)(a), Fla. Stat., to require a standard-ofcare expert witness in a medical malpractice action to specialize in the same specialty, rather in the same or similar specialty, as the health care provider against whom or on whose behalf the testimony is offered; and 3) an amendment to §90.803(24), Fla. Stat., relating to a hearsay exception concerning reports of abuse by elderly persons or disabled adults, removing the alternative requirement that an elderly person or disabled adult testify and only requiring that such individuals be unavailable to do so. Many members of the FJA provided the Supreme Court with comments on their own or on behalf of organizations, including Troy Alan Rafferty, who represented the FJA. See Evidence column for more. An arbitration agreement signed by an assisted living facility resident’s son who was designated as successor attorney-in-fact under a durable power of attorney executed by his mother was not enforceable where there was no evidence that the original attorneyin-fact had resigned or otherwise was unable or unwilling to serve as attorney-in-fact. Dea v. PH Fort Meyers LLC, So.3d , 42 FLW D168 (Fla. 2nd DCA 1-13-2017). In an action based upon an alleged sexual assault by a hospital employee while the plaintiff was a patient in the defendant hospital’s mental health facility, a count that alleged a violation of §766.110, Fla. Stat., for failure to maintain a risk management program concerning adverse incidents as required by §395.0197 was a medical negligence claim to which presuit notice requirements of Ch. 766 apply. St. Joseph’s Hospital, Inc. v. Doe, So.3d , 42 FLW D170 (Fla. 2nd DCA 1-13-2017). The court held that a negligence count for breach of the duty of care to exercise reasonable care to prevent her from being sexually assaulted was not a medical negligence claim requiring presuit. However, “any claim pleaded under section 395.0197 is necessarily a medical negligence claim because that section only requires hospitals and healthcare facilities to investigate ‘adverse incidents,’ which by definition are ‘associated in whole or in part with medical intervention’ … and therefore necessarily ‘aris[e] out of … medical, dental, or surgical diagnosis, treatment, or care.” Under the doctrine of absolute privilege, a public official has complete immunity with regard to actions taken within the scope of the official’s duty. Prins v. Farley, So.3d , 42 FLW D173 (Fla. 1st DCA 1-17-2017). The court found that allegedly defamatory comments, no matter how false or malicious, made by a city commissioner about the city manager were protected because the city council was authorized to dismiss the city manager and the comments were made in connection with the dismissal. Where there was conflicting evidence as to whether or not a nursing home resident had authorized another person to sign on his behalf a residency agreement containing an arbitration agreement, there was sufficient evidence to support the trial court’s conclusion that no binding arbitration agreement existed. Palm Garden of Healthcare Holdings, LLC v. Haydu, So.3d , www.FloridaJusticeAssociation.org | March/April 2017 | 13

CASES&COMMENTARIES

42 FLW D215 (Fla. 5th DCA 1-20-2017). The court noted that while the nursing home had presented evidence that the signatory was acting as the resident’s agent when she signed the admissions agreement, there was also evidence that the resident did not sign the agreement, the signatory was not authorized by nor did the resident give his consent to the signatory to execute the agreement on his behalf, the signatory specifically advised the nursing home admissions director that she had no authority to sign documents on behalf of the resident, and the admissions director had no independent recollection of either the resident or the execution of the agreement. In a slip and fall case, the Third DCA distinguished cooled green pea soup from thawed frozen peas for purposes of determining whether the defendant had constructive knowledge of the substance on the floor. Wilson-Greene v. City of Miami, So.3d , 42 FLW D237 (Fla. 3rd DCA 1-25-2017). The plaintiff slipped and fell in the lobby of a building owned by the city and for which maintenance services were provided by a contractor. When the plaintiff slipped, she fell backwards, hit her head and lost consciousness. When she regained consciousness, she observed a green substance all over her feet, sandals, between her legs, and parts of her upper body. She also observed that the green substance was “not hot.” Other evidence revealed that the green substance on the floor was green pea soup. The plaintiff filed suit against the city and the maintenance contractor, and they both moved for summary judgment on the grounds that the contractor had no legal duty to constantly patrol and supervise the area where the incident occurred and alternatively, if a duty to plaintiff did exist, the defendants had no actual or constructive notice of the dangerous condition. The trial court granted summary judgment and the Third DCA affirmed. It found that the contract language neither created a contractual duty on the part of the maintenance company to constantly monitor and correct problems, nor did it create a heightened duty of care on the part of the company and the

city with regard to maintenance of the premises in a reasonably safe condition. It turned then to the question of whether there was actual or constructive notice of the substance on the floor. It found there was no actual notice because no one saw the spill or knew how the substance got on the floor. The plaintiff asserted that the defendants had constructive knowledge because the soup was not hot when the plaintiff fell and therefore must have been on the floor long enough for it to have cooled. The court rejected this as requiring impermissible stacking of inferences: “We conclude that where melting substances are involved [as were the frozen peas in Teate v. Winn-Dixie Stores, Inc., 524 So.2d 1060 (Fla. 3rd DCA 1988)], there is no need to infer the substance was previously frozen. Logic tells us that is a given. In the instant case, the jury would first need to infer that the substance was hot prior to spilling on the floor and infer from this that it was on the floor a sufficient amount of time for it to have cooled. This requires a jury to impermissibly stack inferences.” An arbitration provision in a nursing home residency agreement was not enforceable where it was signed on behalf of the incompetent resident by her daughter in her capacity as her mother’s health care proxy. Moen v. Bradenton Council on Aging, LLC, So.3d , 42 FLW D279 (Fla. 2nd DCA 1-27-2017). “A health care proxy does not have authority to waive the right to a jury trial and bind a nursing home patient to arbitrate claims because this is not a health care decision.” There were genuine issues of material fact that precluded summary judgment for the defendant restaurant in a case brought by a patron who was injured as a result of swallowing a broken piece of mussel shell that he encountered in a plate of pasta. Dellatorre v. Buca, Inc., So.3d , 42 FLW D289 (Fla. 4th DCA 2-1-2017). The plaintiff had ordered “Linguine Frutti di Mare,” which the menu described as having “shrimp, baby clams, mussels and calamari in a spicy red clam sauce” and pictured with whole intact mussel shells arrayed around linguine. He testified that when he put the last bite in

LEGISLATIVE NOTES

s this is being written we are entering week three of the nine-week 2017 Regular Session. However, by the time you receive this issue of the Journal, the 2017 Session should be nearly over. (Although, early posturing indicates that squabbles with each other and with the governor over budget issues may end up keeping legislators in Tallahassee longer than the nominal 60 days in an extended and/or special session.) Because things are constantly changing at frantic pace during Session, the lag time from writing to publication makes any snapshot of legislative activity at this point in the Session pretty meaningless.

Don’t forget that very detailed information on legislation and legislative proceedings, including live and archived video of committee meetings and floor sessions, can be found on the legislative websites at www. flsenate.gov and www.myfloridahouse.com.

Hopefully you have been keeping up with this year’s legislative activity as events happen via the FJA’s regular emailed updates and website.

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And, of course, stay tuned for the May/June issue of the Journal, which will include our annual roundup of the legislation that passed this year and has the potential to affect your clients and your practice. Calendar: March 7-May 5

2017 Regular Legislative Session

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CASES&COMMENTARIES his mouth, he felt something cutting his throat “as if I had swallowed a knife.” He also swore that he did not break the shell, and a dining companion swore the same. The plaintiff was rushed to the hospital where surgery was performed to remove “a broken mussel shell, about one-and-a-half to two inches long” that was lodged in his throat. In the ensuing lawsuit, a corporate representative testified in deposition that the restaurant’s standard operating procedure for preparation of that dish would have kept a broken shell from ever being served to a customer, and he suggested that the patron himself must have broken the shell. The trial court granted the restaurant’s motion for summary judgment, finding that there were no genuine issues of material fact and that the patron was himself negligent in eating the broken mussel shell. The Fourth DCA reversed and remanded, finding that summary judgment was inappropriate because there were at least two genuine issues of material fact: whether the plaintiff or the restaurant broke the mussel shell; and whether the shell fragment at issue was invisibly served underneath the pasta. The Third DCA reversed the trial court and upheld the enforceability of an arbitration provision in a vehicle purchase agreement where the purchasers who executed the agreement did not speak or read English but signed a purchase order and a retail installment sales contract that were written in English and contained arbitration clauses. Kendall Imports, LLC v. Diaz, So.3d , 42 FLW D294 (Fla. 3rd DCA 2-1-2017). In this class action suit alleging violations of FDUTPA, violations of the Motor Vehicle Retail Sales Finance Act, and unjust enrichment, the trial court found among other things that the dealer did not attempt to explain the terms of the documents to the buyers or inform them of the arbitration provisions, and in any event the arbitration provisions in the two documents conflicted. It denied the dealer’s motion to compel on the grounds that there was no meeting of the minds regarding an agreement to arbitrate and that, even if an agreement had been reached, the provisions were unconscionable. In finding the trial court’s rationale for denying the motion to compel “flawed,” the Third DCA stated: “Because the Buyers did not attempt to learn what the documents they were signing said or meant by reading them, requesting that they be read

or explained to them, or ask any questions to educate themselves to the terms; there is no evidence that Buyers were rushed, pressured, or coerced into signing the documents; there is no evidence that [the dealer’s] employees took it upon themselves to explain the documents and then either omitted mentioning the arbitration provisions or misrepresented the meaning of these provisions; and the arbitration provisions in the purchase order and financing agreement did not irreconcilably conflict, the trial court erred by finding that there was no valid agreement to arbitrate. We also reject the trial court’s finding of procedural unconscionability.” In a slip and fall case based on a transitory foreign substance in the hallway of hospital emergency room, the court affirmed summary judgment in favor of the defendant hospital and its contract cleaning service. Encarnacion v. Lifemark Hospitals of Florida, So.3d , 42 FLW D304 (Fla. 3rd DCA 2-1-2017). As to the hospital, the court found that there was no evidence in the record suggesting that the existence of the foreign substance on the floor was known to the hospital, and in the absence of such evidence, it was incumbent on the plaintiff under §768.0755, Fla. Stat., to come forward with circumstantial evidence that the hospital in the exercise of ordinary caution should have known of the condition. Here it held that the plaintiff’s evidence did not establish how long the substance had been on the floor and that the liability of the cleaning service turned on its contractually assumed obligations, which it found did not create on the part of the service a duty to constantly patrol or supervise the area where the fall occurred. Although the federal Medical Devices Amendment to the Food, Drug, and Cosmetics Act does not preempt state law claims alleging a failure to comply with federal standards established through the FDA’s Premarket Approval Process, the availability of such a “parallel” claim depends on the existence of a state law that establishes the private remedy for a violation of FDA regulations, but Florida has not chosen to do so. Wolicki-Gables v. Doctors Same Day Surgery Center, Ltd., So.3d , 42 FLW D401 (Fla. 2nd DCA 2-15-2017). The court noted that under Florida law a statutory

TLEL

A POWERFUL WAY TO CONNECT The Trial Lawyers Email List (TLEL) provides access to the ideas, experience and wisdom of hundreds of fellow civil justice attorneys inlcuding some of the FJA’s most experienced practitiners and appellate litigators. For more information on TLEL and how to apply for participation, go online at floridajusticeassociation.org and click on the member benefits tab, or call (850) 521-1093

16 | March/April 2017 | www.FloridaJusticeAssociation.org

violation does not give rise to a private civil cause of action in the absence of a clear legislative intent to do so, and Florida has not created such a statutory private cause of action to enforce violations of FDA requirements. Here, the plaintiff had brought a third-party spoliation action against the defendant alleging that if it had kept an allegedly defective FDA-approved medical device that injured the plaintiff, the plaintiffs could have maintained a parallel civil action against the manufacturer of the device under state law. In response to a question certified by the Miami-Dade County Court, the Third DCA ruled that the omission of chiropractors from the statutory list of health care professionals who are authorized to diagnose an emergency medical condition under the PIP law is not a violation of constitutional equal protection and due process protections. Progressive American Ins. Co. v. Garrido, So.3d , 42 FLW D408 (Fla. 3rd DCA 2-15-2017). An estate was not vicariously liable under the dangerous instrumentality doctrine for damages caused in an accident that occurred when the decedent’s daughter was driving the decedent’s car during the gap between the death of the decedent and the appointment of a personal representative for the estate. Depriest v. Greeson, So.3d , 42 FLW D439 (Fla. 1st DCA 2-21-2017). The court found that neither actual nor implied consent to use the vehicle had been given, and that the decedent’s stepson, who was the nominated personal representative, had no legal duty to prevent the decedent’s daughter from using the car. Summary judgment for the estate was affirmed.

“Because there can be no change in the common law unless the statute is ‘explicit and clear in that regard’ and the Wrongful Death Act does not ‘explicitly,’ ‘clearly,’ and ‘unequivocally’ abrogate the common law rule, … a spouse who was not married to a decedent at the time of the decedent’s injury may not recover consortium damages as part of a wrongful death suit.” Kelly v. Georgia-Pacific, LLC, So.3d , 42 FLW D453 (Fla. 4th DCA 2-22-2017). In this case the decedent was exposed to asbestos in 1973-74, married the plaintiff in 1976, was diagnosed with mesothelioma in 2014 and died in 2015. The court noted that there might well be persuasive policy reasons for superseding the common law rule, particularly in cases such as this involving latent injuries, but such a change must come from the legislature. In a premises liability action, while the open and obvious nature of a hazard may discharge a landowner’s or possessor’s duty to warn an invitee of the hazard, it does not discharge the landowner’s or possessor’s duty to maintain the property in a reasonably safe condition. Trainor v. PNC Bank, So.3d , 42 FLW D526 (Fla. 5th DCA 3-3-2017). Ken Kranz, FJA Journal Editor-in-Chief Mr. Kranz is Editor-In-Chief and columnist for the FJA’s monthly Journal. Mr. Kranz has 40 years of legislative experience and formerly served as the Senior Legislative Counsel with various responsibilities related to the FJA legislative activities.

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Applications available online or by phone: 305-740-0603 • Toll Free: 866-738-3817 • Email: money@fastfunds4you.com • www.fastfundsforyou.com www.FloridaJusticeAssociation.org | March/April 2017 | 17

TIPSFORAUTOPRACTITIONERS

FEDERAL COURT:

The Insurer’s Nirvana by DALE SWOPE

he federal courts that apply Florida bad faith law continue to show contempt for the right of the Florida Supreme Court to control the substantive common law. The Florida Supreme Court has precisely expressed what the standard of behavior is in order for an insurance company to be found in bad faith. It is the insurer’s failure to settle a claim when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for their interests. Berges v. Infinity Ins. Co., 896 So. 2d 665, 677 (Fla. 2004).

Under Florida law, it is expressly not a defense for the carrier to show that reasonable minds could have disagreed about whether to settle, or that the claim was “fairly debatable.” Once upon a time there was loose language that suggested it could be, but for all of this century that has simply not been the law. See State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55, 62-63 (Fla. 1995); Imhof v. Nationwide Mutual Insurance Co., 643 So. 2d 617 (Fla. 1994), receded from on other grounds 658 So. 2d 55. There is no “comparative bad faith” defense available to the carriers. Nationwide Prop. & Cas. Ins. Co. v. King, 568 So. 2d 990, 990–91 (Fla. 4th DCA 1990). And instead the entire focus of the claim is not on the motives or intentions of the claimant, but on the conduct of the insurer. Berges, 896 So. 2d at 677. There is no requirement that the insured show the carrier put its own interest ahead of the insured. And there is absolutely, positively, and utterly no suggestion from the Florida Supreme Court that the insured would have to meet the impossible burden of demonstrating that the carrier acted “solely in its own interest” to the exclusion of the insured’s interests. In a failure to settle case, there is also no independent requirement to establish “causation” between the decision not to settle and the excess judgment that constitutes the core of the damages in most bad faith cases. See Nationwide Property & Cas. Ins. Co. v. King, 568 So. 2d 990 18 | March/April 2017 | www.FloridaJusticeAssociation.org

(Fla. 4th DCA 1990) (affirming the trial court’s refusal to give a jury instruction on causation because the standard bad faith instruction “adequately covered the law”). Yet, the federal courts have created these “standards” on their own, and continue to repeat them in case after case, as if repetition and internal adherence to them will somehow make people forget what the actual law is. No matter how many times we say that “water is not wet,” it will never, ever, be dry. The unpublished Eleventh Circuit opinion of Feijoo v. GEICO General Insurance Company, 2017 WL 429254 (11th Cir. 2-1-17), is a recent example of a federal case that reads like a “fairly debatable” case from some state other than Florida. GEICO’s insured had a policy with liability limits of $25,000. Despite multiple offers to settle within policy limits where the plaintiff documented medical expenses of nearly $18,000 and a permanent injury, GEICO offered barely over $5,000. Following a judgment of over $105,000, GEICO was sued for bad faith. GEICO pointed to its usual arguments as justifications for its lowball offers and failure to settle – minor property damage, gaps in treatment, chiropractic treatment, and the claim adjuster’s assessment that the medical bills “seemed excessive.” The court relied on that laundry list of arguments as support for affirming summary judgment, finding that GEICO “diligently pursued a reasonable settlement” and that “no reasonable jury could have concluded that GEICO acted in bad faith.” Emboldened by the sanction of this type of conduct, the carriers continue to push the boundaries of their improper behavior farther and farther, undoing all the benefits the Florida common law had previously bestowed on its consumer. More and more insureds, saddled with avoidable excess verdicts, are left to bring their case to the only forum available to them, hoping that perhaps their case will draw the visiting judge who doesn’t understand the “new rules” (see below), or that perhaps their case will be the one when the federal courts finally

decide to follow the rule of Erie v Tomkins, and defer again to the state courts in setting the common law. In another recent example, Moore v. GEICO is a case that went up on appeal to the Eleventh Circuit thirteen months ago on a routine summary judgment for the insurer, the likes of which are granted and upheld every day in federal courts applying Florida law. The insurer had a chance to settle the case, but the trial court felt the plaintiff’s lawyer secretly hoped the insurer would not meet the conditions of settlement. The trial court also felt that was important to the case somehow. Important, as in outcome determinative. On appeal the insured hit the jackpot, getting a visiting judge who applied the Florida law of bad faith instead of the federal common law of bad faith normally applied at the Eleventh Circuit; the court remanded for a trial, focusing on the conduct of the insurer, not the plaintiff or her attorney. Moore v. GEICO Gen. Ins. Co., 2016 WL 123831 (11th Cir. 1-12-16), opinion vacated and superseded on reh’g, 633 F. App’x 924 (11th Cir. 2016). And, after a trial, the jury found bad faith. That’s where the good news ends for that GEICO customer. After the verdict, on a renewed Rule 50, the trial court considered upon reflection that it should not have admitted evidence about whether a parallel carrier, in essentially the same condition as GEICO, was able and willing to meet the terms of the settlement. At the trial, this evidence was admitted, and the plaintiff, predictably, made a big deal about it. However, once the jury showed that it disagreed with the court’s view of the case, the court reversed the ruling, set the verdict aside, and ordered a new trial and directed it to be conducted without the evidence that apparently helped the plaintiff win. Moore v. GEICO, 2017 WL 565028 (M.D. Fla. 2-13-17). UM Insurers: Not Everyone Makes It to the Promised Land The federal courts seem to wonder why so many bad faith cases are being removed now, but that really should be no mystery. They have created their own common law of Florida bad faith that is starkly different from the actual law created by the Florida Supreme Court. It is so one-sided that an insurance company who has crushed its insured’s financial worth through greed and sloppiness would be foolish to not remove itself into the protective embrace of this outlaw common law. Insurance companies are so enamored with the promised land of federal court that they seem to think they have some constitutional or fundamental entitlement to it, even when the statutory grounds for removal have clearly not been met. See Washington v. Government Employees Insurance Company, No: 6:16-cv-1775-Orl-40KRS (M.D. Fla. 2-7-17). They do not.

It has apparently gotten so bad that some carriers are trying to remove bad faith cases before they are even filed! That’s what Allstate tried to do in Moffitt v. Newton and Allstate, 8:16-cv-1419-T-35MAP (M.D. Fla. 2-21-17). But the district court remanded the case, following state law that allows a plaintiff to amend their complaint to add a bad faith claim to the same case after judgment on the UM claim. On a related note, before Fridman v. Safeco Ins. Co. of Illinois, it made a lot of sense to incorporate a declaratory judgment action in the initial complaint for UM benefits and UM bad faith to help keep the case in state court. Fridman, 185 So. 3d 1214 (Fla. 2016). Since Fridman that is no longer necessary, and in fact not permitted. See Sabol v. USAA Casualty Insurance Company, 2017 WL 238250 (M.D. Fla. 1-19-17) (dismissing declaratory judgment action against UM carrier because no present case or controversy prior to determination of the damages in the underlying contract claim). Courts Littered with PIP Cases Once again we have a PIP lawsuit, essentially arguing about whether a treating doctor can take more from his patient’s $10,000 PIP benefit than the carrier thinks is fair, that has made it all the way up to the Supreme Court. Allstate Ins. Co. v. Orthopedic Specialists, So.3d , 42 FLW S38 (Fla. 1-26-17). The angels on the head of this pin were exploring the intensely important question of whether in the context of the PIP statute the word “shall” means “must” or “may.” Apparently it means “must,” so Allstate won. The Supreme Court also reviewed the scope of permissible discovery by an insurer about an injured person under the PIP statute, §627.736(6). State Farm Mutual Automobile Insurance Company v. Shands Jacksonville Medical Center, Inc., So.3d , 42 FLW S176 (Fla. 2-16-17). The Fourth DCA had previously held that discovery was not limited to document production, but included the methods allowed under the Florida Rules of Civil Procedure. However, the court disagreed with the Fourth DCA and followed the First DCA’s holding, which had held that the scope of discovery under subsection (6)(c) was limited to the production of documents described in subsection (6)(b). In yet another PIP case from the Third DCA, a chiropractor submitted a $6,000 bill, but the PIP insurer refused to pay more than $2,500, because there had been no diagnosis by a physician that the injured person suffered an “emergency medical condition.” Progressive American Insurance Company v. Garrido, So.3d , 42 FLW D408a (Fla. 3d DCA 2-15-17). The chiropractor argued that the PIP statute denied his constitutional rights of due process and equal protection by not giving the same weight to the opinion of a chiropractor that it would give to a medical doctor in determining whether an EMC exists. The Third DCA said there was a rational and reasonable relationship between the Legislature’s objective of reducing fraud and the exclusion of chiropractors to provide an affirmative EMC diagnosis. Hopefully we will not be dealing with these cases much longer.

www.FloridaJusticeAssociation.org | March/April 2017 | 19

TIPSFORAUTOPRACTITIONERS

Motorcycles, Vehicles, and Motor Vehicles In Straub v. State Farm Mutual Automobile Insurance Company, 2017 WL 202847 (M.D. Fla. 1-18-17), UM coverage was dependent upon whether the undefined term “vehicle” in a policy exclusion included the motorcycle owned and operated by the injured party, but that was not listed on the policy. The district court agreed with State Farm and said the plain meaning of the term “vehicle” included a motorcycle. The court noted there is “a plethora of cases referring to motorcycles as vehicles in layman terms.” Of course, if the policy exclusion in question said “motor vehicle” instead of only “vehicle,” then the result may have been different. The policy did define a “motor vehicle” as “a vehicle with four or more wheels.” And a quick search of case law also reveals numerous cases finding motorcycles fall within the definition of “motor vehicle.” The Florida Supreme Court discussed the different definitions of “motor vehicle” found throughout Florida law back in 1994 and determined a motorcycle was a motor vehicle. Grant v. State Farm Fire & Cas. Co., 638 So. 2d 936, 938 (Fla. 1994). That case compared §324.021(1), which says that a motor vehicle is “every self-propelled vehicle which is designed and required to be licensed for use upon a highway,” to §627.732 that defines motor vehicle as “any self-propelled vehicle with four or more wheels…” See also Progressive Exp. Ins. Co. v. Boyce, 821 So.2d 445, 446 (Fla. 2d DCA 2002), cause dismissed, 831 So 2d 671 (Fla. 2002) (looking to §324.021(1) for a definition of “motor vehicle” in a motorcycle coverage dispute). Federal courts have also reviewed the plentiful inconsistent definitions of motor vehicle found throughout Florida legislation. See Geico Gen. Ins. Co. v. Schwinn, 2006 WL 1529092 (M.D. Fla. 5-30-06) (comparing the definitions of motor vehicles in §324.021 and §627.732 to determine that an ATV is not required to carry liability insurance and therefore the insurance carrier did not need to offer UM coverage, and that since the coverage provisions of an insurance policy refer to §324.021, a dirt bike was not required to carry liability insurance and could never be an “uninsured auto” for purposes of UM coverage.). Nitpicking Nonmonetary Conditions The Second DCA held that a proposal for settlement by Allstate did not comply with the particularity requirement of Rule 1.442 because a provision of the release attached to the proposal would have required the claimant to make a representation that was untrue. Diecidue v. Lewis, So.3d , 42 FLW D376b (Fla. 2d DCA 2-10-17). The release had a waiver of loss-of-consortium claims by the claimant that required him to represent that he had no unmarried dependent children, which was untrue. The court said it would have been impossible for the claimant to comply and that a PFS cannot extinguish claims that are extrinsic to the litigation. The case includes a concurring opinion by Judge Casanueva, observing that the allowance of nonmonetary conditions in proposals for settlement discourages settlement, increases the likelihood of

20 | March/April 2017 | www.FloridaJusticeAssociation.org

ambiguities and nitpicking, and expands the evidentiary demands on a trial court. Judge Casanueva advocates for an analysis that if the nonmonetary conditions are not available to a party in their prayer for relief in the pleadings, then the offer does not comply with the statute and should not support a sanction award. If the parties want a more expansive settlement, then they can negotiate privately. Kudos to Judge Casanueva for the thoughtful opinion. The whole idea of nonmonetary conditions is not in the statute, §768.79, but instead only in the rule. The origin of it seems to be in a well-intentioned effort by past FJA president W.C. Gentry to deal with the situation where a UM carrier’s consent is required for acceptance. Instead, it has created dozens of irrational decisions. Even the majority here is trying to stretch the developed case law to reach the obviously correct result. There wasn’t anything “imprecise or ambiguous” about the offer – it was perfectly clear. It is simply irrational to permit people to demand performance of events or conditions that exceed what they would be able to obtain if the case went to verdict and judgment. We should just say that. Or, better yet, we should just pass a statute that gets rid of the non-monetary conditions provision in Rule 1.442, and hope the Florida Supreme Court either adopts that as a rule, or concedes that the legislature created the right to recover attorney’s fees in the statute, and should be able to set the parameters for entitlement. By way of comparison, the Third DCA followed the Florida Supreme Court’s recent warning that courts are discouraged from “nitpicking” proposals for settlement to search for ambiguity. Atlantic Civil, Inc. v. Swift, 42 FLW D516a (Fla. 3d DCA 3-1-17). The recipients of the PFS argued that because it referred to “defendants” (plural) at various places in the document, it was ambiguous about whether both defendants must agree in order to settle. The court examined the complete language of the proposal and release and rejected that argument. Grab Bag A judgment that merely reserves jurisdiction “to determine attorney’s fees and costs” does not override the Rule 1.525 requirement for a prevailing party to file a motion for attorney’s fees within 30 days after the final judgment. Hovercraft of South Florida, LLC, v. Reynolds, So.3d , 42 FLW D367a (Fla. 5th DCA 2-10-17). The Fourth DCA found a policy exclusion for damage to property “being transported by” an insured person applied to a motorcycle while towed in a trailer. Ducksbury v. Progressive, So.3d , 42 FLW D178a (Fla. 4th DCA 1-18-17).

Dale M. Swope Mr. Swope is the founder of Swope, Rodante, P.A. in Tampa. He is a member and senior fellow of the FJA Executive Committee and founder and past President of the Tampa Bay Trial Lawyers Association. He specializes in cases involving catastrophic personal injury, wrongful death and insurance bad faith claims.

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nsurer did not waive its right to rely on homeowners policy exclusion based on pre-suit conduct of acknowledging coverage and making partial payment. To the extent that these actions could have constituted waiver, the insured failed to preserve the argument by filing a reply to the carrier’s affirmative defense citing to the exclusion. Gamero v. Foremost Insurance Company, So.3d , 42 FLW D158 (Fla. 3rd DCA 1-11-17). Following damage to Gamero’s floor tile caused by a dropped vase, Foremost initially accepted coverage and offered payment of approximately $4,000.00. Gamero disagreed with the amount and invoked the policy’s appraisal provision. The appraisal panel determined that the tile in the entire house needed replacement and awarded almost $19,000. When Foremost refused to pay the full appraisal award (alleging that the total amount was not covered), Gamero filed suit for breach of contract. Foremost filed an answer, denying any breach of contract and asserted as an affirmative defense that the policy’s marring exclusion applied and that there was no coverage for the claim. Gamero did not file a Reply to the affirmative defense. The trial court granted Foremost’s Motion for Summary Judgment, holding that there was no coverage as a matter of law in that the loss clearly constituted marring, which was expressly excluded under the policy. The Third DCA rejected Gamero’s argument that Foremost waived its right to rely on the exclusion because it initially acknowledged coverage and paid for a portion of the loss. Relying on Fla.R.Civ.P. 1.100(a), the Third District Court of Appeal held that even if Foremost’s actions amounted to a waiver, Gamero failed to preserve the issue because Gamero failed to reply to or avoid the affirmative defense. Gamero raised the waiver issue for the first time in opposition to the carrier’s Motion for Summary Judgment. Unambiguous PIP policy language was sufficient notice of the insurer’s election to use permissive Medicare fee schedules to limit reimbursements for medical expenses. Allstate Insurance Co. v. Orthopedic Specialists, So.3d , 42 FLW S38 (Fla. 1-26-17). In this case, the Florida Supreme Court considered whether a PIP policy provided legally sufficient notice of Allstate’s election to use 22 | March/April 2017 | www.FloridaJusticeAssociation.org

FROM AROUND THE STATE By Gregory Yaffa

the Medicare fee schedules identified in §627.736(5)(a)2, Florida Statutes (2009), to limit reimbursements for medical treatment. Finding ambiguity in the policy, the Fourth District Court of Appeal held that the policy language was not legally sufficient to authorize Allstate to apply the Medicare fee schedules. However, because the Fourth’s ruling conflicted with the decision of the First District Court of Appeal in Allstate v. Stand-Up MRI of Tallahassee, 188 So.3d 1 (Fla. 1st DCA 2015), the Fourth District certified the question. The Allstate policy language in question is as follows: Limits of Liability … Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law, including, but not limited to, all fee schedules. (Emphasis added). The Florida Supreme Court quashed the Fourth District’s decision, finding “Allstate’s PIP policy provides legally sufficient notice of Allstate’s election to use the permissive Medicare fee schedules identified in section 627.736(5)(a)2 to limit reimbursements.” Allstate’s policy gave sufficient notice allowing it to pay pursuant to the Medicare fee schedule. Where carrier refused to defend and its insured entered into a Cobentz agreement, carrier could not later intervene in the probate proceedings or raise liability defenses that it could have raised had it not refused to defend its insured. The Estate of Arroyo v. Infinity Indemnity Ins. Co., So.3d , 42 FLW D192 (Fla. 3rd DCA 1-18-17). Following a tragic car crash that resulted in the death of one person (Arroyo) and severe incapacitating injuries to another (Reyes), the Arroyo family petitioned the probate court to open an estate, which the probate court granted. Shortly thereafter, Reyes sued the Estate of Arroyo. Reyes never filed a written claim in the probate court. Infinity (carrier for Arroyo) declined to defend the action and the Estate, left to fend for itself, entered into a Coblentz agreement. In exchange for

an agreement not to execute on the judgment, the Estate assigned its rights under the policy to Reyes, including the right to pursue the Estate’s bad faith claim against Infinity. Reyes filed the bad faith claim in circuit court. Infinity moved for Summary Judgment, arguing that the statute of limitations on the negligence action had run with Reyes failing to file a statement of claim in the probate court. Infinity alleged that because of this, the Estate was immune from the negligence lawsuit and therefore not exposed to an excess judgment (a prerequisite to bad faith). Infinity then moved to intervene in the Estate proceedings in the probate court for the purpose of determining whether the Estate had the authority to settle the negligence lawsuit in the circuit court by entering into the Coblentz agreement. Not only did the probate court allow Infinity to intervene, but it also entered an order finding that the Estate did not have the authority to enter into the settlement agreement and that the Coblentz agreement was unenforceable. While this was going on in the probate court, the circuit court granted Summary Judgment in favor of Infinity, finding that there could be no bad faith where Reyes failed to file the requisite written notice of claim against the Estate, which relieved the Estate of any excess exposure. The Third District Court of Appeal consolidated the appeals of both the circuit court and the probate court orders and reversed on all fronts. The Court reversed “the probate court’s order permitting Infinity to intervene in the Estate’s probate proceedings because Infinity’s interest was not at issue before the probate court prior to the filing of the motion to intervene.” The Court also reversed the probate court’s ruling on Infinity’s motion to determine that the Estate did not have standing to enter into the settlement agreement, because it was based on defenses that Infinity was prohibited from raising as a matter of law. Finally, the Court also reversed the circuit court’s order granting Summary Judgment in favor of Infinity because the motion was premised on defenses that Infinity could have raised but failed to in the underlying litigation that led to the Coblentz agreement. If Infinity had defended the Estate when the lawsuit was filed in circuit court, it could have raised the failure of the plaintiff to timely file his claim in probate court, and asserted defenses including statutory limitations to bar recovery. Infinity’s failure to defend stripped it of any standing to assert these defenses. Discovery of facts under 627.736(6)(c) - (PIP pre-litigation discovery) - is limited to the production of the documents described in 627.736(6)(b) and does not allow for deposition of carrier representative. State Farm Mutual Automobile Ins. Co. v. Shands Jacksonville Medical Center, Inc., So.3d , 42 FLW S176 (Fla. 2-16-17). The certified conflict issue in this case concerns the extent of permissible discovery under §627.736(6)(c), Florida Statutes (2015). Without going into all the facts, the First District Court of Appeal held that discovery of facts under this section is limited to the production of the documents described in §627.736(6)(b). The Fourth District Court of Appeal, however, in Kaminester v. State Farm Mutual Automobile

Ins. Co., 775 So.2d 981 (Fla. 4th DCA 2000), held that the discovery methods provided for in the Florida Rules of Civil Procedure are available to insurers that institute proceedings pursuant to §627.736(6)(c), including the taking of depositions. In approving the reasoning of the First District and disapproving Kaminester, the Florida Supreme Court held that the scope of permissible discovery under §627.736(6)(c) is limited to the production of documents described in subsection (6)(b), “a written report of the history, condition, treatment, dates, and costs of such treatment of the injured person and why items identified by insurer were reasonable in amount and medically necessary, together with a sworn statement,” as well as production, inspection and copying of “records regarding such history, condition, treatment, dates, and costs of treatment.” Subsection (6) provides limited pre-litigation discovery into specified information about treatment and charges for treatment provided to injured party, and discovery tools found in rules of civil procedure are not triggered until litigation over reasonableness of those charges has ensued. Nothing in subsections (6)(b) or (c) contemplates requiring PIP provider to submit any of its representatives to deposition. It was error for the trial court to order State Farm to make a designated corporate representative available for deposition. New trial granted where trial court allowed potentially prejudicial evidence of insured’s health condition to be presented to the jury. State Farm Florida Ins. Co. v. Figueroa, So.3d , 42 FLW D339 (Fla. 4th DCA 2-8-17). State Farm raised two issues in this appeal of final judgment entered in favor of State Farm’s insured. First, State Farm argued that the trial court erred in denying Summary Judgment and a directed verdict because its insured failed to timely comply with policy obligations following the loss (Hurricane Wilma – 2005). Second, State Farm argued entitlement to a new trial based on highly prejudicial evidence admitted in trial relating to the insured’s health issues. The Fourth District Court of Appeal rejected the first issue, holding that the insured’s post loss compliance obligations involved issues of fact that were properly resolved by the jury. However, the Court reversed and granted a new trial to State Farm because the insured’s health never should have been introduced as it may have led the jury to infer that her health was a factor to be considered in determining whether she substantially complied with her post loss contractual obligations. No need to file a new action against FIGA where first-party suit was filed before the predecessor carrier became insolvent. Morrison v. Homewise Preferred Ins. Co. and Florida Insurance Guaranty Association, So.3d , 42 FLW D365 (Fla. 5th DCA 2-10-17). Following sinkhole damage to her home, Morrison filed suit against her carrier, Homewise. During the pending lawsuit, Homewise became insolvent. Due to the insolvency, FIGA was activated to handle covered claims. When Morrison subsequently filed the motions to amend her complaint and for substitution of parties to name FIGA as a defendant in the pending lawsuit, the time limitation provided in sections 95.11(5)(d) and 631.68 had expired. After the trial court denied the motions and dismissed the lawsuit with prejudice, Morrison appealed. www.FloridaJusticeAssociation.org | March/April 2017 | 23

INSURANCE INSURANCE

The Fifth District Court of Appeal reversed, holding, “If a first-party suit is not filed against the insurer before insolvency occurs, the insured is required to file its action against FIGA before the limitation periods in sections 95.11(5)(d) and 631.68 expire. However, where a firstparty suit was filed before the insurer became insolvent, the statutes of limitation by their own terms do not apply.” Gonzalez v. Homewise Preferred Ins. Co. and Florida Insurance Guaranty Association, So.3d , 42 FLW D405 (Fla. 2nd DCA 2-15-17). In a fact pattern similar to the above case, the trial court dismissed with prejudice the insured’s action against FIGA, despite the homeowners having filed suit against Homewise prior to the carrier becoming insolvent. Like the Fifth District Court of Appeal above, here, the Second District reversed, holding that the homeowners were not required to file a new action against FIGA or separately serve FIGA with the pending action. Failure to comply with post loss contractual obligations voids coverage. State Farm Florida Insurance Co. v. Fernandez, So.3d , 42 FLW D407 (Fla. 3rd DCA 2-15-17). Trial court erred in entering an order compelling appraisal where the insureds failed to comply with post-loss obligations by failing to give immediate notice of alleged additional damage, failing to keep an accurate record of expenditures, failing to provide the insurer with any requested records and documents to support supplemental claims and failing to submit sworn proof of loss within 60 days. No UM coverage for employee that was not in a “covered auto” at the time of the crash. Additionally, because the policy in question was an excess policy and not a primary policy, it was not subject to the waiver of UM coverage mandate imposed by §627.727(1). Zurich American Insurance Company v. Cernogorsky, So.3d , 42 FLW D476 (Fla. 3rd DCA 2-22-17). Cernogorsky, an employee of Zurich’s named insured, was struck by an underinsured motorist while walking in front of his employer’s office while walking into the building. After recovering the underinsured motorist’s policy limits of $100,000, Cernogorsky made a claim for UM benefits under his employer’s policy ($1,000,000). Cernogorsky alleged entitlement to coverage because 1) he was a covered individual under the company’s policy because the policy covered autos not owned by the company, which per Cernogorsky included vehicles owned by the employees; and 2) the policy provided primary coverage which included UM coverage that extended to him because the company had failed to execute a UM coverage waiver as required by §627.727(1) of the Florida Statutes.

24 | March/April 2017 | www.FloridaJusticeAssociation.org

Zurich argued that Cernogorsky was not entitled to UM coverage because: 1) he was not a named insured under the policy; 2) the policy was not a primary liability auto insurance policy, but an excess policy, and thus not governed by §627.727(1), but by §627.727(2), which does not require a written rejection of UM benefits; and 3) because Cernogorsky was a pedestrian at the time of the accident, he could not recover UM benefits under the policy even had such coverage been provided. The parties’ summary judgment motions were denied and a jury found for Cernogorsky, determining that coverage existed under the policy. The Third District Court of Appeal reversed and remanded with instructions to enter judgment in favor of Zurich. The Court found that Cernogorsky was not an insured under the policy because he was not in a “covered auto” at the time of the crash (either company owned, hired or even his own auto, if being used for company purposes). The only named insured under the policy was the employer, The Green Companies. Additionally, the Court agreed with Zurich that because the policy at issue was not a primary liability policy, it was not subject to the waiver of UM coverage mandate imposed by §627.727(1). Section 627.727(2) provides, “the provisions of subsection (1) which require uninsured motorist coverage to be produced in every motor vehicle policy delivered or issued for delivery in this state, do not apply to any policy which does not provide primary liability insurance that includes coverage for liabilities arising from the maintenance, operation, or use of a specific insured motor vehicle.” Finally, the Court held that even if there was UM coverage under the excess liability policy, Cernogorsky did not qualify as an insured because he was not a named insured or a resident family member (Class I insured). At best, he was a Class II insured. Pursuant to Mullis v. State Farm Mutual Auto Ins. Co., 252 So.2d 229 (Fla. 1971), individuals may recover UM benefits as a Class II insured only if they are lawfully occupying or driving a covered automobile.

Gregory M. Yaffa

joined Domnick, Cunningham & Whalen, LLC in 2004 and currently practices in the areas of insurance company bad faith, personal injury and wrongful death. Greg is admitted to practice law not only in the State Courts of Florida, but also in the Florida Federal Courts, including the United States District Court, Middle District Court of Florida, the United States District Court, Southern District of Florida and the United States District Court.

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www.FloridaJusticeAssociation.org | March/April 2017 | 25

MEDICALMALPRACTICE

EDICAL

ALPRACTICE

lorida Supreme Court finds drastic limitation on attorney fees in legislative claims bill unconstitutionally impairs preexisting contract; severs limiting clause from bill. Searcy, Denney, Scarola, Barnhart & Shipley v. State, So.3d , 42 FLW S92 (Fla. 1-31-17). Plaintiffs sued a hospital for medical malpractice after their son suffered catastrophic neurological injuries during his birth. At trial, the jury awarded damages of $28.3 million for the child, $1.34 million for the mother, and $1 million for the father. However, because the hospital was a special district of the state, the court applied the sovereign immunity limitation on damages and entered judgment against the hospital for only $200,000. After several years of lobbying by the plaintiffs and their attorneys, the Legislature passed a claims bill awarding the child $10 million dollars, plus an additional $5 million to be paid in installments into a special needs trust. The claims bill also dictated that no more than $100,000 in attorney fees and costs could be paid out of the money awarded. After the first $10 million was paid, the child’s mother was made guardian of his property. With the plaintiffs’ full support, plaintiffs’ counsel filed a motion to have the guardianship court approve a closing statement allowing $2,500,000 in attorney fees and costs. At the hearing on the motion, evidence was presented that the plaintiffs’ attorneys had worked on the case for more than a decade and advanced more than $500,000 in costs. The plaintiffs argued that the claims bill’s limitation on fees and costs was an unconstitutional impairment of the preexisting attorney fee contract, which had provided for a contingency fee of 40 percentunless limited to the 25 percent contemplated by §768.28, Florida Statutes, for any recovery from a sovereign immune defendant. The guardianship court declined to approve the closing statement, finding that it did not have the authority to contravene the fee limitation in the claims bill or to declare it unconstitutional. The Fourth District Court of Appeal affirmed, relying on Gamble v. Wells, 450 So. 2d 850 (Fla. 1984), for the idea that a claims bill is an “act of grace” by the Legislature, so the Legislature is free to determine the conditions to be placed on it regardless of any underlying fee contract. The Fourth District certified the following question as one of great public importance: AFTER THE ENACTMENT OF SECTION 768.28, FLORIDA STATUTES, AND THE ADOPTION 26 | March/April 2017 | www.FloridaJusticeAssociation.org

by Scott R. McMillen & Allison McMillen

OF FLORIDA SENATE RULE 4.81(6), IS IT CONSTITUTIONALLY PERMISSIBLE FOR THE FLORIDA LEGISLATURE TO LIMIT THE AMOUNT OF ATTORNEYS’ FEES PAID FROM A GUARDIANSHIP TRUST ESTABLISHED BY A LEGISLATIVE CLAIMS BILL? The Florida Supreme Court answered in the negative. The Court found that Gamble no longer applies, because it accrued before the Legislature had passed §766.28, Florida Statutes, which grants sovereign immunity but provides for the possibility of a claims bill once all administrative and judicial remedies have been exhausted. According to the Court, the plain language of §766.28 contemplates an attorney fee of up to 25 percent not only when plaintiffs receive an award in a court action, but also for any award received from the claims bill procedure described in the same statute. This corresponds to Senate Rule 4.81(c), which requires that a claims bill may not be heard until the claimant has exhausted all available administrative and judicial remedies. In other words, the Court explained, a claimant is virtually required to “lawyer up” in order to seek a claims bill. In the instant case, the Court concluded, the claims bill’s limitation on attorney fees and costs violated the U.S. and Florida Constitutions, because it impaired the preexisting fee contract without any “significant or legitimate public purpose.” On the contrary, the Court noted, the fee limitation had a chilling effect on the fundamental right of access to the courts. The Court went on to find that the fee limitation could properly be severed from the remainder of the bill. Justices Canady and Polston dissented with separate written opinions. Florida Supreme Court holds Federal Patient Safety and Quality Improvement Act (“PSQIA”) does not preempt Amendment 7 (“Patient’s Right to Know”). Charles v. Southern Baptist Hospital of Florida, Inc., So.3d , 42 FLW S79 (Fla. 1-31-17). The plaintiff in a medical malpractice case sought discovery of adverse medical incident reports from the hospital defendant pursuant to article x, section 25 of the Florida Constitution (often referred to as “Amendment 7,” or “Patient’s Right to Know.”) The hospital produced the Code 15 reports and Annual Reports required under §395.0197, Florida Statutes, as well as two “occurrence reports” pertaining to the patient herself. But

the hospital refused to produce other documents on the grounds that they were privileged and confidential “patient safety work product” (or “PSWP”) under the Federal Patient Safety and Quality Improvement Act (“PSQIA”). PSQIA is a voluntary federal program intended to gather and analyze data about healthcare errors in order to improve patient safety. Health care providers that choose to participate establish their own Patient Safety Evaluation System (“PSES”) in order to collect and manage the relevant information. From there, the information is forwarded to an outside “Patient Safety Organization,” which analyzes it and gives feedback to the health care provider on how to improve. The various Patient Safety Organizations around the country also share information with a central clearing house, which compiles all of the data and makes it available to health care providers. In order to encourage participation, PSQIA includes various provisions making the information submitted by providers privileged and confidential. So that health care providers do not have to maintain one information system for PSQIA, and another for information they are required to collect and report under state law or other obligations, PSQIA rules allow providers to collect all the information in one PSES, “where the information remains protected unless and until the provider determines it must be removed from the [PSES] and reported to the State.” The trial court granted the plaintiff’s motion to compel, finding that the adverse incident reports being sought were not PSWP if they were collected or maintained for a purpose other than submission to a Patient Safety Organization under PSQIA, or for more than one purpose. The hospital petitioned for a writ of certiorari, which the First District Court of Appeal granted. The First District concluded that, under the plain language of PSQIA, the records at issue were clearly PSWP, by virtue of being placed into the hospital’s Patient Safety Evaluation System (“PSES”), “where they remained pending submission to a Patient Safety Organization.” The First District held that the records did not meet the PSQIA definition of what is not PSWP, because they were not original patient records, and they were not “collected, maintained, or developed” separately from the PSES. Finally, the First District concluded that PSQIA expressly and impliedly preempts

Amendment 7. The plaintiff appealed, and the Florida Supreme Court found mandatory jurisdiction because a District Court had declared part of the Florida Constitution invalid. After briefing the case, the parties filed a stipulation of dismissal because the case had settled, but the Court rejected the stipulation. The Florida Supreme Court disagreed with the First District regarding both its interpretation of PSQIA and the issue of preemption. According to the Court, PSQIA and its accompanying rules “carved out broad exceptions” to the definition of PSWP, as well as exceptions under which PSWP itself may be disclosed. In particular, the definition of PSWP “does not include information that is collected, maintained, or developed separately, or exists separately,” from a PSES. Adverse medical incident reports do not count as PSWP because Florida law requires them to be created and maintained, and Amendment 7 provides patients with a constitutional right to obtain them. The Court found that PSQIA “expressly preserves and incorporates, rather than preempts, a provider’s reporting and recordkeeping obligations under state law,” and the First District had erred by not considering PSQIA as a whole. The Court also noted with disapproval that the First District’s opinion below “reflects a view that somehow [PSQIA] is inconsistent with medical malpractice actions and that often medical malpractice actions are punitive.” The Court expressly rejected both notions, finding that state medical malpractice laws, including the Amendment 7 right to access adverse incident reports and use them in medical malpractice suits, can cooexist harmoniously with PSQIA, and that both systems support Congress’ goal of improving the health care system. Justice Canady dissented with a written opinion, in which Justice Polston concurred. Florida Supreme Court holds §766.102(3)(b) “foreign body presumption” mandatory even if additional evidence of negligence exists; burden of proof shifts to defendant once foreign body is discovered. Dockswell v. Bethesda Memorial Hospital, Inc., So.3d , 42 FLWS32 (Fla. 1-26-17). Several days after a surgery, a nurse removed a patient’s abdominal drainage tube while the patient and his wife looked on. Four months later, the patient was still having abdominal pain,

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MEDICALMALPRACTICE

and a CT scan found a 4.25-inch piece of drainage tube still inside his abdomen, requiring a second surgery to remove it. The patient and his wife sued the hospital for medical malpractice. Before trial, the plaintiffs requested that the court read Jury Instruction 402.4(c), which is based on §766.102(3)(b), Florida Statutes, and states:

about testimony the plaintiff’s experts were expected to give. The trial court granted the motion to amend as to some of the defendants, and those defendants petitioned for a writ of certiorari. The Fifth District found that certiorari review was appropriate because defendants have a substantive right not to be subjected to a punitive damages claim and undergo discovery about their finances until the requirements in [Negligence is the failure to use reasonable care.] The presence §768.72, Florida Statutes, have been met. In its analysis, the Fifth of (name of foreign body) in (patient’s) body establishes District looked separately at the pleading and evidentiary components negligence unless (defendant(s) prove(s) by the greater weight of a motion to amend to add a claim for punitive damages. In regard of the evidence that [he] [she] [it] was not negligent. to the pleading requirement, the Fifth District rejected the plaintiff’s argument that Rule 1.190(f ) does not specifically mandate that a The trial court refused to give the instruction, agreeing with the copy of the proposed amended complaint be attached to the motion defendant hospital that §766.102(3)(b) and its related jury instruction to amend. The Court explained that Rule 1.190(f ) must be read only apply when the plaintiff cannot identify the health care provider together with Rule 1.190(a), which provides that parties moving to at fault. Since both plaintiffs had witnessed the tube’s removal and amend their pleadings “shall” attach the proposed amended pleadings could identify the nurse involved, the trial court ruled, they were not to the motion. The Fifth District held that the trial court below had entitled to Instruction 402.4(c). Over the plaintiffs’ objection, the trial departed from the essential requirements of law when it ruled on a court gave the jury the following, non-standard jury instruction instead: motion to amend with no proposed amended complaint attached. Next, the Court addressed the evidentiary component, concluding that The existence of a medical injury does not create any inference the term “proffer” as used in Rule 1.190(f ), “refers only to timely filed or presumption of negligence against a health care provider, documents and excludes oral representations of additional evidence and the claimant must maintain the burden of proving that an made during the hearing.” Therefore, the Court held, the trial court injury was proximately cause[d] by a breach of the prevailing had also departed from the essential requirements of the law when it professional standard of care by the health care provider. allowed the plaintiff to make inappropriate oral proffers. The Fifth District declined to address the defendants’ additional argument that The jury found for the defendant, and after the trial court denied the the trial court was required to make detailed factual findings in support plaintiffs’ motion for a new trial, the plaintiffs appealed. The Fourth of the order granting the plaintiff’s motion to amend, but did note District Court of Appeal affirmed, holding that §766.102(3)(b) is that the trial court must make an affirmative finding that the plaintiff a codification of the common-law res ipsa loquitur doctrine, and has made a “reasonable showing by evidence” providing a “reasonable therefore only applies when direct evidence of negligence is lacking. The evidentiary basis” to recover punitive damages. Florida Supreme Court granted jurisdiction on the basis of an express and direct conflict with the Third District in Kenyon v. Miller, 756 So. Fifth District reverses verdict for plaintiff because of prejudicial 2d 133 (3d DCA 2000). The Court analyzed the background and surprise testimony by plaintiff ’s experts. Doctors Company v. history of the “foreign body presumption” arising out of §766.102(3) Plummer, So.3d , 42 FLW D216 (Fla. 5th DCA 1-20-17). A (b), as well as the res ipsa loquitur doctrine, and agreed with Kenyon patient died of meningitis caused by an ear infection, and his widow that they are not the same, and do not apply in the same circumstances. sued their family doctor and her insurance company for medical The Court also agreed with Judge Conner, who had dissented in the malpractice. Up until trial, there was no allegation in the pleadings case below, that the plain language of §766.102(3)(b) means that it or by the plaintiff’s experts that the defendant doctor had been applies any time a foreign body is unintentionally left in a patient after negligent in giving the decedent samples of Levaquin. In fact, one of a medical procedure. Once a plaintiff shows that to be the case, there the plaintiff’s experts testified at his deposition that he did not believe is a mandatory presumption of negligence, and the burden of proof giving the samples was inappropriate. Nevertheless, during opening switches to the defendant to rebut it. Thus, the Court held, the trial statement, the plaintiff’s counsel told the jury that Levaquin was not court erred by failing to give the applicable Jury Instruction 402.4(c), FDA-approved to treat ear infections, the defendant doctor should not and the error was not harmless. The Court found that the trial court have given it, and the wrong dose was given. The trial court overruled compounded its error by giving an inaccurate, and possibly misleading, the defendants’ objections and denied their motion for mistrial. As instruction to the jury instead. Justice Polston dissented with a written the trial continued, the plaintiff’s two standard of care experts testified opinion, in which Justice Canady concurred. for the first time that the defendant had breached the standard of care by giving Levaquin. The package insert from Levaquin was also Fifth District holds trial court departed from essential requirements admitted into evidence over defendant’s objection, and the plaintiff of law in granting plaintiff’s motion to amend to add punitive reemphasized the Levaquin issue during closing. The jury found for damages claim. Varnedore v. Copeland, So.3d , 42 FLW D360 the plaintiff, and the defendants appealed, arguing that they had been (Fla. 5th DCA 2-10-17). The plaintiff in a medical malpractice suit unduly prejudiced by the Levaquin evidence and arguments. The Fifth filed a motion to amend his complaint to add a count for punitive District Court of Appeal agreed and reversed, holding that the surprise damages, but did not attach a proposed amended complaint to the testimony and other evidence had prejudiced the defendants, because motion or otherwise provide one before the hearing. Although the they had not been able to conduct discovery on various related issues plaintiff had already identified record evidence on which he was relying, that might have helped their defense. The Fifth District found that he also made several new oral proffers during the hearing, including 28 | March/April 2017 | www.FloridaJusticeAssociation.org

the trial court compounded the error by allowing the package insert into evidence. Finally, the Fifth District found reversible error in the trial court’s decision to exclude the deposition testimony of one of the patient’s treating doctors on the grounds that the defendants had not subpoenaed the doctor first. As the Court explained, Florida Rule of Civil Procedure 1.330(a)(3)(F) authorizes the deposition of an expert or a “skilled witness” to be used for any purpose. The Court considered it “inexplicable” that the trial court had declined to find that a board-certified emergency room physician was not a skilled witness for purposes of the rule. Second District holds claim brought under §766.110, Florida Statutes is medical malpractice claim by definition. St. Joseph’s Hospital, Inc. v. Jane Doe, So.3d , 42 FLW D170 (Fla. 2d DCA 1-13-17). A former patient sued a hospital, alleging that a hospital employee had sexually assaulted her while she was an inpatient. Her complaint contained one count of negligence, alleging that the hospital had failed to exercise reasonable care for her safety. The second count was based on §766.110, Florida Statutes, titled “Liability of Healthcare Facilities.” §766.110 provides for a duty on the part of hospitals “to provide risk management and assure the competence of its personnel, through the adoption of a comprehensive risk management program in compliance with [section] 395.0197.” The hospital moved for summary judgment on the grounds that the plaintiff failed to comply with the medical malpractice presuit requirements in Chapter 766, Florida Statutes. The trial court denied the motion, and the Second District Court of Appeal granted the hospital’s petition for a writ of certiorari. As for the negligence count, the Second District found no

departure from the essential requirements of law, because nothing about that count’s allegations involved medical care. However, the Second District held, the second count should have been dismissed. Section 395.0197, the Court explained, is incorporated by §766.110, and pertains to “adverse incidents” in hospitals and healthcare facilities. Because §395.0197 defines “adverse incident” as something “associated in whole or in part with medical intervention,” the Court explained, by definition any claim pleaded under §395.0197 “arises out of… medical, dental, or surgical diagnosis, treatment, or care,” and is a claim for medical malpractice. Scott R. McMillen Mr. McMillen is the founder of McMillen Law Firm, P.A, with a principal office in Orlando and satellite offices around the state and in Atlanta, Georgia. He is currently a member of Florida Bar Board of Governors, and a past President of the Central Florida Trial Lawyers Association, The Orange County Bar Association and The Legal Aid Society of the Orange County Bar Association. Mr. McMillen has been representing medical negligence victims throughout Florida and Georgia for nearly 30 years.

Allison McMillen Ms. McMillen graduated magna cum laude from the University of Miami School of Law in 2007. Ms. McMillen is a member of The Order of the Coif, the Central Florida Trial Lawyers Association, the Central Florida Association for Women Lawyers, and the George C. Young First Central Florida American Inns of Court. She practices with the McMillen Law Firm, P.A., in its Orlando office.

www.FloridaJusticeAssociation.org | March/April 2017 | 29

PRODUCTSLIABILITY

WHAT FLORIDA’S CONSUMERADVOCATES Need to Know about the Takata Plea Deal by Milette E. Webber and William C. Ourand

he United States Department of Justice (“DOJ”) recently announced a plea deal with Takata, the airbag manufacturer behind the largest automotive recall in history. Make no mistake—this agreement was a horrible result for consumers. As will be explained below, the deal essentially clears the path for Takata to restructure its entire corporate organization, including, possibly, by having its U.S. subsidiary declare bankruptcy. And while the deal includes a “Restitution Fund,” most of that money will go to the automakers that profited from the sale of Takata’s ammonium nitrate inflators, leaving a woefully insufficient amount for injured consumers and their families. This article will summarize the Takata plea deal, and analyze the impact the deal may have on civil litigation, including whether the plea deal and possible bankruptcy and corporate restructuring of one or more Takata entities will present an empty chair concern at trial. The Takata-DOJ Plea Deal On January 13, 2017, Takata Corporation and the U.S. Department of Justice entered into a Rule 11 Plea Agreement. As part of the plea

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deal, Takata agreed to plead guilty to one count of wire fraud and to pay a $25,000,000 criminal fine to the United States.1 The basis for the wire fraud claim is Takata’s admission that it falsified test data and reports about its ammonium nitrate inflators. 2 Additionally, the agreement provided for the establishment of a $975,000,000 “Restitution Fund.” 3 Of that amount, only $125,000,000 was allocated “to recompense individuals who suffered (or will suffer) personal injury” because of a defective ammonium nitrate inflator. The lionshare – $850,000,000 – was instead earmarked for automakers, including Honda, who were described as “victims of Takata’s fraud scheme.”4 The Court will appoint a Special Master to establish, oversee, and administer both funds.5 The Special Master is tasked with making findings of fact and recommendations to the Court regarding entitlement to restitution and amounts to be paid.6 Not surprisingly the parties recommended Kenneth Feinberg as the Special Master.7 Kenneth Feinberg has been the industry’s “go to” compensation system manager, administering compensation funds for the victims of the 9/11

disaster, the BP oil spill, Sandy Hook, the Virginia Tech shootings, the Boston Marathon bombing, and the GM ignition switch litigation to name a few. Like other litigation related compensation funds, the Special Master will have the authority to develop a formula to determine the distribution of monies from the Individual Restitution Fund based on the type and amount of each claimant’s loss.8 While there are no caps on the individual injury claims in this fund, there is a limitation regarding the length of time the Individual Restitution Fund will be available to pay claims. Indeed, upon the later of either five years after the entry of the plea (which is the time currently estimated by Takata for the recall of its defective inflators) or the date upon which the recall is complete, any funds remaining in the restitution monies shall be paid to the United States.9 The Plea Deal Fails to Protect Consumers At the time of this writing, media reports suggest that TK Holdings, Inc., Takata’s U.S. subsidiary, may go bankrupt, while Takata Corporation, the Japanese parent company, may get bought out by a rival auto part supplier and restructured.10 According to some commentators, the plea deal “removed a major obstacle to [Takata]’s potential sale or restructuring.”11 Given the serious concerns over Takata’s future, the $125,000,000 set aside for injured consumers is nowhere near sufficient. Takata airbag cases often involve severe, catastrophic injuries, such as permanent disfigurement, impairment, blindness, and even death. Moreover, the whistleblower statements and other evidence, some of which has been made publicly available, support a very strong claim for punitive damages. Accordingly, it is entirely possible that the relatively tiny portion of the Restitution Fund earmarked for injured consumers will end up being too small to even cover the first jury verdict awarded in a Takata injury or wrongful death case. And there is a very real possibility that multiple large verdicts will be rendered, as the Takata airbag defect has already been linked to at least 16 deaths and 180 injuries.12 These numbers will, tragically, only increase as there continues to be a significant shortage of replacement parts needed to repair the recalled vehicles.13 Additionally, the plea deal goes much too far in attempting to characterize the automakers as “victims.” Incredibly, the deal states that, had the automakers “been provided with true and accurate test information and data,” they “either would have: (a) insisted that any problems with the PSAN inflators be resolved prior to installation into their vehicles; or (b) refused to put the airbag systems containing the faulty or problematic PSAN inflators into their vehicles.”14 Based on evidence uncovered to date, at least for certain automakers, these statements are completely false and for many others, speculative and unsupported. Unfortunately, automakers have already embraced these statements in the federal multi-district litigation (“MDL”) currently pending before Judge Moreno of the United States District Court for the Southern District of Florida. In their most recent status report to the MDL Court, certain automakers claimed that “Takata’s guilty plea significantly undermines plaintiffs’ claims against the Automotive Defendants in the economic class action.”15 The plaintiffs vehemently denied the automakers’ assertions, arguing that Takata’s admission of guilt does not excuse “the

Automotive Defendants’ own reckless, deceptive conduct . …”16 The plaintiffs further argued that, “for them to call themselves victims insults the real victims here – hundreds of people who have been seriously injured or killed by a device that was supposed to protect them, and tens of millions of vehicle owners who have been forced to bear the risk of such injury and incurred substantial economic damages …”17 Finally, the plaintiffs pointed out that, “[a]lthough the plea agreement may be admissible against Takata as an admission by a party opponent, the general prohibition on hearsay precludes the Automotive Defendants from even using it against plaintiffs.”18 Can Honda and Other Automakers Fabre Takata? It is likely that Honda and other automakers will attempt to shift blame from themselves to Takata in personal injury and wrongful death suits in Florida and elsewhere throughout the country, as they have already attempted to do with respect to the economic loss claims in the MDL. This is particularly concerning given the uncertainty surrounding Takata’s future and the woefully inadequate restitution fund set aside for those who suffer catastrophic injuries caused by defective Takata airbags. Fortunately, we believe that such defenses are inapplicable and should be summarily rejected in Takata airbag cases governed by Florida law. First and foremost, apportioning fault between Takata and the automakers would directly conflict with the purpose of strict products liability. The Florida Supreme Court has long recognized that “[t]he underlying basis for the doctrine of strict liability is that those entities within a product’s distributive chain who profit from the sale or distribution of the product to the public, rather than an innocent person injured by it, should bear the financial burden of even an undetectable product defect.”19 The Court has further recognized that “[t]hose entities are in a better position to ensure the safety of the products they market, to insure against defects in those products, and to spread the cost of any injuries resulting from a defect.”20 Accordingly, all of the entities which profit from the sale and distribution of a product are liable for injuries caused by defects in that product, regardless of whether they are “at fault” for the defect.21 For these reasons, in Barnes v. Kellogg Co., 846 So. 2d 568 (Fla. 2d DCA 2003), the Second District Court of Appeal recognized that, “[t]here is no rational method to apportion fault between the strictly liable retailer, who has committed no negligent act, and the manufacturer who produced a product with a hidden defect.”22 The Court further explained that, “[i]n such a case, where the retailer’s liability is not based on fault, Fla. Stat. ch. 768.81(3) (1999) does not allow the defendants to apportion damages between themselves.”23 This rationale is consistent with the well-settled notion that a vicariously liable party cannot apportion fault to the party whose conduct they are being held liable for—i.e., the employer cannot apportion fault to the employee in a respondeat superior case.24 While Barnes involved the 1999 version of the statute, the 2006 revisions do not relate to, let alone contradict, the rationale underlying that decision; specifically, that apportionment does not apply in cases where the defendant’s liability is not based on fault.25 Moreover, the case against Honda and other automakers is even stronger than the case against the retailer in Barnes, as Florida law has long recognized that “an assembler of a product who sells the completed product as its own and thereby represents to the public that it is the manufacturer is www.FloridaJusticeAssociation.org | March/April 2017 | 31

PRODUCTSLIABILITY considered the manufacturer of the component part.”26 As explained by one Florida Court: “It would seem unconscionable to us if Ford were permitted to shirk its duty to stand behind the products that it sells to the public through its dealer organization on the very shallow excuse that the defective component was manufactured by a supplier selected by it rather than by Ford itself.”27 The same should hold true in the case of Honda and other auto manufacturers who used Takata airbags equipped with ammonium nitrate inflators. Moreover, Florida law continues to hold defendants jointly and severally liable where it is shown that their misconduct constituted an intentional tort.28 In the products liability context, this exception to the pure comparative fault rule is met where the evidence shows that the defendant knew that the product was likely to cause harm yet proceeded to market the product anyway.29 We believe that the evidence will ultimately establish that Honda and other automakers helped to actively conceal the nature and scope of the Takata airbag defect. If this is established, then those automakers may be found liable for punitive damages, and will be legally barred from invoking a Fabre defense. Conclusion The Takata-DOJ plea deal does not serve the interests of consumers who face the peril of having their claims lost to bankruptcy or corporate restructuring. Thankfully, the DOJ plea deal is not the last word on the subject. As is often the case, the civil justice system remains the last, best hope for injured consumers to obtain redress, and for the public at large to learn the truth about who is at fault for the Takata airbag debacle. This, of course, will require consumer advocates to pursue meaningful cases through trial so that juries can determine whether the injured consumers, or the auto manufacturers, are the true victims of the Takata airbag debacle. ____________ The Rule 11 Plea Agreement is publicly available at https://www. justice.gov/opa/press-release/file/926051/download. 2 Id. 3 Id. 4 Id. 5 At this point, there is no specific deadline for the Court to do so. 6 https://www.bloomberg.com/news/articles/2017-02-26/takata-u-ssaid-to-nominate-feinberg-to-oversee-air-bag-fund 7 Id. 8 Takata-DOJ Rule 11 Plea Agreement 9 Id. 10 https://www.bloomberg.com/news/articles/2017-02-27/takata-sguilty-plea-accepted-by-judge-in-air-bag-fraud-case 11 http://www.reuters.com/ar ticle/us-takata-settlementidUSKBN1662EA. 12 http://www.latimes.com/business/la-fi-takata-criminal-charges20170227-story.html 13 http://www.firstcoastnews.com/news/local/consumer/on-yourside/on-your-side-trade-in-woes-for-vehicles-with-recalled-takataairbags/416445416 14 Takata-DOJ Rule 11 Plea Agreement, supra note 1. 15 Automotive Defendants’ St34 1

32 | March/April 2017 | www.FloridaJusticeAssociation.org

tus Report, p. 1 (Feb. 23, 2017). 16 Plaintiffs’ Status Report to the MDL, p. 1 (Feb. 27, 2017). 17 Id. at p. 1-2 18 Id. 19 Samuel Friedland Family Enters. v. Amoroso, 630 So.2d 1067, 1068 (Fla. 1994). 20 Id. 21 Id. 22 Barnes v. Kellogg Co., 846 So. 2d 568, 2003 Fla. App. LEXIS 5782, CCH Prod. Liab. Rep. P16,599, (Fla. Dist. Ct. App. 2d Dist. 2003), overturned on other grounds, Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005). 23 Id. 24 Grobman v. Posey, 863 So. 2d 1230, 2003 Fla. App. LEXIS 19764, (Fla. 4th DCA 2003) (“Vicarious liability does not mesh with the concept of liability that can be apportioned among joint tortfeasors. The vicariously liable party is responsible to the plaintiff to the same extent as the primary actor; both are jointly liable for all of the harm that the primary actor has caused. In such a situation, fault cannot be divided into the percentages contemplated by §768.81. Also, the vicariously liable party has engaged in no wrongful conduct. Thus, there can be no “fault” within the meaning of §768.81(3). The basis for imposing liability is that party’s relationship with the negligent tortfeasor.”) 25 See Michael S. Hooker, Joint and Several Liability in Florida: Are Reports of Its Demise Greatly Exaggerated?, 80 Fla. Bar. J. 10 (“Based on the rationale of Barnes, a retailer that is sued for strict liability based on its sale of an allegedly defective product will be jointly and severally liable with the product’s manufacturer for damages suffered by the injured party. Because the strictly liable retailer has no independent fault, no rational basis exists to apportion fault between the defendants. Thus, the comparative fault principles of § 768.81(3) appear to have no application in this strict products liability setting, and the manufacturer and strictly liable retailer will possess joint and several liability for the plaintiff’s damages. Although Barnes was decided under the 1999 version of the comparative fault statute, the 2006 legislative changes do not appear to alter the principle articulated in that case.”. 26 Holman v. Ford Motor Co., 239 So.2d 40, 1970 Fla. App. LEXIS 5706 (Fla. 1st DCA 1970). 27 Id. 28 Fla. Stat. §768.81(4). 29 See Sorvillo v. Ace Hardware Corp., 2014 U.S. Dist. LEXIS 99464, Milette Webber Milette Webber recently joined the Newsome Melton law firm in Orlando, Florida. She received her J.D. from the University of Memphis in 1998. With Newsome Melton, she continues to focus her practice on representing victims of catastrophic injuries, carbon monoxide exposure and defective products.

William C. Ourand, Jr. Will Ourand graduated magna cum laude from the Florida State University College of Law where he served for two years on the editorial board of the Law Review. After graduation, he was inducted into the Florida State Chapter of the Order of the Coif. He is currently an associate at Newsome Melton, where he represents consumers in products liability and class action lawsuits.

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EVIDENCE

WHERE ARE WE WITH DAUBERT?

Florida Legislature amended sections 90.702 and 704, Florida Statutes. Section 702 (“Testimony by experts”) was amended to mirror the federal Daubert standard for expert testimony and to expressly reject “pure opinion” testimony.9 Section 704 (“Basis of expert testimony”) also was amended to match the federal standard.10

by Matt Schultz

n February the Florida Supreme Court declined to adopt the familiar “Daubert amendments” to the extent they are procedural. The court expressed “grave concerns” over the constitutionality of the amendments. However, it did not actually decide whether the amendments are constitutional.1

So what do we do now? In short, we litigate as if Daubert eventually will be upheld and we litigate as if Daubert eventually will be struck down. Either may happen.

How We Got Where We Are. Before 2013, expert opinion testimony was admissible in Florida if it would “assist the trier of fact in understanding the evidence or in determining a fact in issue,” the witness was “qualified as an expert by knowledge, skill, experience, training, or education,” and the opinion could “be applied to evidence at trial.”2 So-called “pure opinion” testimony was admissible if it satisfied this standard.3 A Frye analysis for “general acceptance” of an opinion was required if opinion was challenged as involving “new or novel” principles.4 Frye did not apply to “pure opinion” testimony.5 In 1993, the U.S. Supreme Court adopted the Daubert “gatekeeping” standard for expert testimony.6 After Daubert, The Florida Supreme Court “repeatedly reaffirmed [its] adherence to the Frye standard for the admissibility of evidence,”7 characterizing Daubert as a “more lenient standard” and Frye as “the higher standard of reliability.”8 In 2013 the 34 | March/April 2017 | www.FloridaJusticeAssociation.org

Before the Florida Supreme Court this February was the question of whether to adopt these legislative amendments, to the extent procedural, as rules of evidence. The Supreme Court declined to adopt the Daubert amendments to the extent they are procedural. Its “grave concerns” pertained to the constitutionality of the amendments with respect to the right of access to courts and the right to trial by jury. However, it did not decide whether the amendments are constitutional because the case before it was a “rules” case, i.e., a decision whether to adopt the amendments rather than a true case or controversy.11 Why the Court Didn’t Decide the Constitutional Question. Although the Florida Constitution does not include a “case or controversy” requirement, Florida courts have created one, and “every case must involve a real controversy as to the issue or issues presented.”12 The case before the Supreme Court in February was not a “real controversy;” it was a “rules” case, i.e., a case relating to the adoption or amendment of rules within the Supreme Court’s purview.13 This means the constitutional question remains open (although there is a strong argument that it effectively has been decided by prior caselaw, as discussed below). Despite the Court’s concerns about the substantive constitutionality of the statute, it could eventually, when faced with a “real controversy,” decide that its initial concerns were misplaced, deem the amendments constitutional, and accept them to the extent they are procedural. Of course it could instead hold that its initial concerns were valid and strike the statute on substantive constitutionality (as distinguished from a procedural overreach by the legislature, as discussed below). For now, the Court basically has said that it won’t adopt the amendments procedurally because it is unsure about their constitutionality. Preserving The Constitutional Issues in Your Cases. This raises a twotiered constitutional question on the Daubert amendments. The first and easier question is whether the amendments are unconstitutional as a legislative encroachment on the Supreme Court’s procedural rulemaking authority (the separation of powers issue). If not, then the second question arises—whether the amendments are substantively unconstitutional as a denial of access to courts or a denial of the right to trial by jury. When

faced with Daubert challenges in your cases, you should be sure to preserve both arguments. I address each below. The Separation of Powers Issue. Section 90.702 was amended by the Florida Legislature as follows: If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if; (1) The testimony is based upon sufficient facts or data; (2) The testimony is the product of reliable principles and methods; and (3) The witness has applied the principles and methods reliably to the facts of the case; however, the opinion is admissible only if it can be applied to evidence at trial.14 The legislature amended section 90.704 as follows: The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.15 The Florida Legislature is permitted to enact only substantive law. The Florida Supreme Court, on the other hand, has exclusive authority to promulgate rules constituting “procedural law.” 16 Any legislative enactment that is procedural in nature encroaches on the Supreme Court’s rulemaking authority under Article V., Section 2(a) of the Florida Constitution, and therefore violates the separation of powers doctrine. A legislative enactment that is procedural in nature generally will be held unconstitutional.17 Two district courts of appeal already have deemed the Daubert amendments procedural. Neither declared the amendments unconstitutional because, as discussed below, one case presumed constitutionality and the issue was not presented in the other. But now that the Florida Supreme Court has declined to adopt the amendments to the extent they are procedural, these holdings should compel a finding that the amendments violate the separation of powers doctrine. In Perez v. Bell South Telecommunications,18 the Third DCA addressed whether the Daubert amendments apply retrospectively. Only legislative enactments that are procedural in nature may be applied retrospectively, so the court had to decide whether the Daubert amendments are procedural or substantive.19 The Perez court found that section 90.702 “indisputably applies retrospectively.”20 In so

ruling, it cited Windom v. State,21 for the proposition “that a statute which only relates to the admission of evidence is procedural in nature and does not violate the prohibition against ex post facto laws.”22 The Perez court acknowledged in a footnote that only the Supreme Court can adopt procedural law, but it did not address the impact of its holding on the constitutionality of the Daubert amendments. Instead, the court found “comfort here in the fact that the Florida Supreme Court periodically adopts all legislative changes to the Florida Evidence Code to the extent that they are procedural,” and in fact the Supreme Court had stricken all Frye references in the Florida Rules of Juvenile Procedure.23 The Perez court’s deference to the Supreme Court— essentially a presumption that the court would adopt the Daubert amendments to the extent procedural—is in keeping with practice in the lower courts given how seldom the Supreme Court declines to adopt legislation to the extent it is procedural.24 But this presumption or deference is no longer appropriate in the Daubert context now that the Supreme Court has refused to adopt the legislation to the extent it is procedural. Instead, in the light of the Supreme Court’s recent ruling, the Perez court’s holding the Daubert amendment to 90.702 procedural is tantamount to a ruling that it violates the separation of powers doctrine. The same is true for the subsequent, binding, Fourth DCA precedent on this point. In Bunin v. Matrixx Initiatives,25 the Fourth DCA addressed the same issue presented in Perez, i.e., whether the Daubert amendment to 90.702 could be applied retrospectively. Like the Perez court, the Bunin court did not hesitate to declare the Daubert amendment procedural: It is well-settled that “[p]rocedural or remedial statutes ... are to be applied retrospectively and are to be applied to pending cases.” Alamo Rent–A–Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994). A statute that merely “relates to the admission of evidence” is generally considered procedural. Windom v. State, 656 So.2d 432, 439 (Fla.1995). Accordingly, as the Third District has explained, “section 90.702 of the Florida Evidence Code indisputably applies retrospectively.” Perez v. Bell South Telecomms., Inc., 138 So.3d 492, 498 (Fla. 3rd DCA 2014).26 The Bunin court took care to point out that “the plaintiff did not raise the argument that the 2013 amendments to section 90.702 violated the separation of powers doctrine by encroaching upon the Florida Supreme Court’s authority to adopt procedural rules in Florida courts.”27 Clearly the Fourth DCA understood the potential constitutional impact of its holding that the Daubert amendment is procedural, which is why it noted that the issue was not before it. Perez and Bunin are consistent with prior precedent and are correct in concluding that the Daubert amendment to 90.702 is procedural.28 A substantive law is one that “creates, defines, and regulates rights [and] includes those rules and principles which fix and declare primary rights of individuals with respect towards their persons and property.”29 Procedural laws, on the other hand, “encompass the course, manner, form, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion.”30 Accordingly, “where [the Supreme Court] has promulgated rules that relate to practice and procedure, and a statute provides a www.FloridaJusticeAssociation.org | March/April 2017 | 35

EVIDENCE

contrary practice or procedure, the statute is unconstitutional to the extent of the conflict,” and even if it “has some substantive aspects, but the procedural requirements of the statute conflict with or interfere with the procedural mechanisms of the court system, those requirements are unconstitutional.31 As the Fourth DCA has recognized, “[a] statute that merely ‘relates to the admission of evidence’ is generally considered procedural.”32 Although legislative modifications to the evidence code have been deemed constitutional despite having procedural aspects, that occurs only where “procedural provisions [are] intertwined with substantive rights,” as exemplified by In re Commitment of Cartwright, a case where a “statutory provision for the admission of hearsay” was deemed constitutional because, although it had procedural aspects, it was “directly and closely tied to the definition of the state’s substantive right to secure the commitment of sexually violent predators.”33 The Daubert amendments are purely procedural and are not “intertwined” with or “directly and closely tied to” any substantive right. Hence, this exception should not apply. Additionally, “[f ]ederal Courts have also determined that the Daubert standard is a rule of procedure, and therefore have applied it in diversity cases even where state substantive law applies….”34 State courts outside Florida have reached the same conclusion.35 In light of the Florida Supreme Court’s ruling, the binding precedent of Perez and Bunin, and the wealth of other state and federal authorities deeming Daubert procedural, Florida courts going forward should find the amendments procedural and accordingly declare them unconstitutional. If the amendments ultimately are held not procedural, then they should not be applied retrospectively, i.e., to cases arising before July 1, 2013. The Underlying Constitutionality of the Amendments. As I mentioned above, the Supreme Court noted that the Daubert amendments raised “grave constitutional concerns” including “undermining the right to a jury trial and denying access to courts.”36 The court has signaled a constitutional defect significant enough to prompt its refusal to adopt the amendments. Its concerns are warranted because the Daubert amendments impact the fundamental due process right to call witnesses and the concomitant right of access to courts as well as the right to jury trial. A preview of these issues is included below, although you should research this further for preservation and briefing purposes. Access to Courts/Due Process. Article I, Section 21 of the Florida Constitution states: “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” A statute violates this constitutional guarantee if it “obstructs or infringes that right to any significant degree.”37 According to the Florida Supreme Court, “the Legislature may only abolish a right if it has [1] provided a reasonable alternative, [2] it has shown an overpowering public necessity for the abolishment of the right, and [3] there is no alternative method of remedying the problem.”38 There is “no relevant difference” between the “overpowering public necessity” standard and the “compelling governmental interest/strict scrutiny test,” i.e., the most demanding level of judicial review reserved for violations of fundamental constitutional rights.39 To survive 36 | March/April 2017 | www.FloridaJusticeAssociation.org

strict scrutiny, the law must be “necessary to promote a compelling governmental interest and must be narrowly tailored to advance that interest.”40 Decisions on the denial of access of courts often involve substantive rights, as with the Florida Supreme Court’s recent ruling that portions of the workers’ compensation code deny access to courts because they no longer provide a “reasonable alternative” to tort litigation.41 However, the deprivation of procedural rights or denial of due process may also constitute a denial of access to courts. The right to call witnesses, including expert witnesses, is a freestanding due process right and is essential to ensure a litigant’s access to courts. The Third District Court of Appeal has articulated the fundamental importance of the right to call witnesses: The right to call witnesses is one of the most important due process rights of a party, accordingly, the exclusion of the testimony of expert witnesses must be carefully considered and sparingly done. Furthermore, a trial court should exercise caution when the witness sought to be excluded is a party’s only witness or one of the party’s most important witnesses because if the witness is stricken, that party will be left unable to present evidence to support his or her theory of the case.42 The Daubert bill itself demonstrates the legislature’s intent to prohibit the entire class of previously admissible “pure opinion” testimony: “WHEREAS, by amending s. 90.702, Florida Statutes, the Florida Legislature intends to prohibit in the courts of this state pure opinion testimony as provided in Marsh v. Valyou, 977 So.2d 543 (Fla. 2007).”43 The opinion cited in the bill, Marsh v. Valyou, recognized that “[e]xperts routinely form medical causation opinions based on their experience and training.”44 The amendments not only abrogate the right to call witnesses but deprive litigants of an entire class of testimonial evidence previously given “routinely” in Florida courts. Federal courts recognize that the right of access to courts may be violated where one “effectively deprives the plaintiff of essential proof,”45 which was the very purpose of the Daubert amendments with respect to pure opinion testimony, as Florida appellate courts have recognized.46 Given the oft-discussed burdens and shortcomings of Daubert,47 it is debatable whether the Daubert standard in general presents a “reasonable alternative” to pre-existing Florida law. But the Daubert amendments clearly fail to provide a reasonable alternative to preexisting law because they simply abolish all “pure opinion” testimony by legislative fiat. Even if Daubert were considered a “reasonable alternative,” the legislature has not shown an “overpowering public necessity” or a “compelling governmental interest” in abolishing pre-existing law. It would be exceedingly difficult to articulate one given that the Florida Supreme Court has itself repeatedly rejected arguments to adopt the Daubert standard under Florida law. In order to find an “overpowering

public necessity,” one would have to argue, in effect, that the Supreme Court has repeatedly ignored that necessity. The enactment itself includes no statement of public necessity, much less an “overpowering” necessity.48 It states that the Supreme Court replaced the Frye standard in 1993, that it has “subsequently reaffirmed and refined the Daubert standard,” that the Florida Evidence Code is “generally patterned after the Federal Rules of Evidence,” that Rule 702 of the Federal Rules of Evidence has been amended to adopt Daubert, and that 90.702 is being amended to track Rule 702 and to prohibit “pure opinion” testimony.49 While the U.S. Supreme Court may have “reaffirmed and refined” Daubert, the Florida Supreme Court has repeatedly rejected it, beginning with Flanagan v. State, just three months after Daubert was decided.50 The Court in Brim v. State reiterated that “[d]espite the federal adoption of a more lenient standard in [Daubert], we have maintained the higher standard of reliability as dictated by Frye.51 The Court again rejected Daubert in Marsh v. Valyou, noting that, after Daubert, “we have since repeatedly reaffirmed our adherence to the Frye standard for admissibility of evidence.”52 There can be no principled assertion of an “overpowering public necessity” for an evidentiary standard that our highest court has repeatedly rejected. It follows that the legislature acted without authority when it abolished pre-existing law and replaced it with the Daubert standard. One may argue the statute is therefore unconstitutional. Right to Jury Trial. The Daubert amendments violate the right to trial by jury53 because they abolish “pure opinion” and other expert testimony previously weighed by jurors and replaced it with a standard that calls upon the judge to weigh all expert testimony as a threshold matter. Under preexisting law, “[w]hile an expert’s pure opinion testimony comes cloaked with the expert’s credibility, the jury can evaluate this testimony in the same way that it evaluates other opinion or factual testimony.”54 Likewise, any expert testimony that survived a Frye analysis was presumptively admissible: “once the Frye test is satisfied through proof of general acceptance of the basis of an opinion, the expert’s opinions are to be evaluated by the finder of fact and are properly assessed as a matter of weight, not admissibility.”55 In Castillo v. E.I. Du Pont De Nemours & Company, the Florida Supreme Court criticized the Third DCA’s having considered the extrapolation of data from generally accepted experiments: “Third District went beyond the requirements of Frye, which assesses only the validity of the underlying science. Frye does not require the court to assess the application of the expert’s raw data in reaching his or her conclusion. We therefore conclude that the Third District erroneously assessed the Castillos’ expert testimony under Frye by considering not just the underlying science, but the application of the data generated from that science in reaching the expert’s ultimate conclusion.”56 The Daubert amendments abolish this preexisting law, which required that a jury weigh expert testimony. The legislature replaced this law with a requirement that judges act as “gatekeepers,” eliminating from jury consideration expert testimony that, in the court’s opinion, has

not “applied the principles and methods reliably to the facts of the case.” This requires the very analysis into an expert’s conclusions that the Florida Supreme Court forbade in Castillo. In fact, the Castillo court recognized as much when it discussed (and rejected) Daubert in its opinion: The first prong of Daubert is the Frye test, which is the test followed in Florida. The second prong requires the court to consider everything from the methodology to the extrapolation of data, all the way to the ultimate conclusion. The Third Circuit explained that a challenge to the second prong of Daubert “is very close to a challenge to the expert’s ultimate conclusion about the particular case.”57 In reversing the Third DCA, the Supreme Court said that its faulty analysis was “’essentially a Daubert analysis’ because it focused on the expert’s methodology and reasoning.”58 It noted that “the exceptions [defendants] take with the [plaintiff’s] experts’ conclusions go to the weight of that testimony, not to the admissibility.”59 Of course the “weight” of that testimony would be decided by a jury. Under the Daubert amendments the Third DCA’s opinion would be methodologically acceptable (indeed, compelled) and would deprive the plaintiff of the jury consideration the Florida Supreme Court required under pre-existing law. Caselaw since the enactment of Daubert demonstrates the impact the amendments have had in this respect.60 Because the Daubert amendments take from the jury and legislatively abolish all “pure opinion” testimony, and because for all other experts they take from the jury and place in judges’ hands the decision of how much weight to give an expert’s conclusion, a strong argument can be made that the amendments violate the constitutional right to jury trial under Florida law. How to Approach Daubert Issues in Your Cases. Florida embraces the “principle of judicial restraint sometimes called the ‘last resort rule,’” which holds that a court should “avoid considering a constitutional question when the case can be decided on nonconstitutional grounds.”61 Trial courts may (and arguably should) shy away from declaring the Daubert amendments unconstitutional unless a ruling is unavoidable on the issues presented. For example, a trial court may not be able to avoid the constitutional question if expert testimony is challenged as “pure opinion,” which clearly is not admissible under Daubert yet clearly is admissible if Daubert does not apply (assuming it is otherwise competent). If a trial court must decide the constitutional question it should address the separation of powers issue first. If it determines the Daubert amendments are “procedural” and therefore unconstitutional, it would not be required to determine whether the amendments also are substantively unconstitutional (i.e., that they deny the right to trial by jury or access to courts). But it would not be prohibited from ruling on the substantive constitutionality of the amendments.

www.FloridaJusticeAssociation.org | March/April 2017 | 37

EVIDENCE

No one knows how Daubert ultimately will fare. Thus, regardless of whether a trial court addresses the constitutional issues, and regardless of how they might be decided, the safest approach is for the trial court to apply both the Daubert and pre-Daubert standards (which may or may not include a Frye analysis, depending upon whether new or novel principles are involved). If the outcome is the same under both analyses, then the ruling is on safer footing. If the analyses produce different results, the court will have to make a call on which applies. Keep in mind that, before Daubert, an expert could be stricken without a Frye analysis if the opinion did not have a sufficient basis.62 Although this principle is encompassed by the Daubert standard, it remains a basis to exclude expert testimony under section 90.705. A trial court could strike an expert on this basis independent of (or in addition to) any Daubert analysis, and if otherwise proper, that holding should survive regardless of Daubert’s ultimate fate. Conclusions. Justice Holmes wrote, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”63 I believe the arguments to strike Daubert are stronger and ultimately will prevail, particularly if presented to the Florida Supreme Court as currently composed. In the meantime, whether seeking to exclude an opponent’s expert or defending against a motion to strike, you should consider: (1) what ruling you would seek if Daubert undoubtedly would be upheld, and (2) what ruling you would seek if Daubert undoubtedly would be struck down. Seek relief that encompasses both and, if possible, in a way that produces the same result under the Daubert and pre-Daubert standards. And avoid Daubert issues as much as possible until “what the courts will do in fact” has moved into the past tense. ______________ 1 In re: Amendments to Fla. Evidence Code, So.3d , 42 FLW S179 2017 WL 633770 at *5 (Fla. 2-16-17). 2 § 90.702, Fla. Stat. (2012). If challenged, the expert was required to have a sufficient factual basis for the opinions and inferences expressed. §90.705, Fla. Stat. (2012). 3 See, e.g., Marsh v. Valyou, 977 So.2d 543, 548 (Fla. 2007) (defining “pure opinion” testimony as opinion “based on [the expert’s] experience and training”). 4 Castillo v. E.I. Du Pont De Nemours & Co., 854 So.2d 1264, 1268 (Fla.2003) (noting that Frye applies only “when the expert attempts to render an opinion that is based on new or novel scientific techniques” and holding that “the proponent of the evidence bears the burden of establishing by a preponderance of the evidence the general acceptance of the underlying scientific principles and methodology”). 5 Marsh, 977 So.2d at 548 (“It is well-established that Frye is inapplicable to ‘pure opinion’ testimony.”) 6 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). 7 Marsh, 977 So. 2d at 547. 8 Brim v. State, 695 So. 2d 268, 271–72 (Fla.1997). 9 Ch. 2013-107 § 1, Laws of Fla. (2013). 10 Ch. 2013-107 § 1, Laws of Fla. (2013). It is doubtful whether the amendment to 90.704 changed Florida law in any meaningful way, as I wrote in the July/August 2014 edition of the Journal (“Spotlight: Experts as Conduits for Hearsay”).

38 | March/April 2017 | www.FloridaJusticeAssociation.org

11 In re: Amendments to Fla. Evidence Code at 9, So.3d , 42 FLW S179, 2017 WL 633770 at *5. The Court accepted the recommendation of the Florida Bar’s Code & Rules of Evidence Committee to decline adoption of the Daubert amendments. In the interests of full disclosure, I serve on the committee and voted to recommend that the Court decline to adopt the Daubert amendments. 12 Dep’t of Revenue v. Kuhnlein, 646 So. 2d 717, 720 (Fla. 1994), as clarified (Nov. 30, 1994). 13 The Court accepted the recommendation of the Florida Bar’s Code & Rules of Evidence Committee to decline adoption of the Daubert amendments: “After considering the numerous filings in this case, and having had the benefit of oral argument, for the reasons discussed below, we follow the Committee’s recommendation and decline to adopt, to the extent they are procedural, the changes to sections 90.702 and 90.704 of the Evidence Code made by the Daubert Amendment.” 2017 WL 633770 at *2. 14 Ch. 2013-107 § 1, Laws of Fla. (2013). Words stricken are deletions; words underlined are additions. 15 Ch. 2013-107 § 2, Laws of Fla. (2013). 16 Massey v. David, 979 So. 2d 931, 936 (Fla. 2008). See also id. at 937 (“Generally, the Legislature is empowered to enact substantive law while this Court has the authority to enact procedural law.”) 17 In re Amendments to the Florida Evidence Code, 782 So. 2d 339, 341 (Fla. 2000) (“[W]e decline to address the substantive/procedural issue [regarding the former testimony rule] until such time as the issue comes before the Court in a true ‘case or controversy’, because to do otherwise would effectively pass on the constitutionality of the legislation itself.”) (emphasis added). But see In re Commitment of Cartwright, 870 So. 2d 152 (Fla. 2d DCA 2004) (discussing exceptions). 18 138 So. 3d 492, 498 (Fla. 3d DCA 2014). 19 Id. at 498 (citing Alamo Rent-A-Car v. Mancusi, 632 So. 2d 1352 (Fla. 1994) for the proposition “Procedural or remedial statutes … are to be applied retrospectively and are to be applied to pending cases.”) 20 Perez, 138 So. 3d at 498. 21 656 So. 2d 432 (Fla. 1995). 22 Perez, 138 So. 2d at 498. Perez also noted that the First DCA had previously applied the Daubert amendments retrospectively, although it did so based on the fact that the law was amended during the pendency of the appeal. The court did not expressly analyze the procedural/ substantive question, although retrospective application suggests the court deemed the rule procedural. Conley v. State, 129 So. 3d 1129 (Fla. 1st DCA 2013). 23 Id. at 498 n.12. 24 See, e.g., McLean v. State, 854 So. 2d 796, 803 n.7 (Fla. 2d DCA 2003) (“Apparently, the Supreme Court intends to allow trial courts to utilize a rule of evidence during the period between its legislative enactment and its adoption by the Supreme Court if the trial court determines that the new rule of evidence is procedural and does not violate the prohibition against ex post facto application. Obviously, the trial court uses the new rule at the risk that it may later be disapproved by the Supreme Court.”); see also Crane Co. .v DeLisle, 206 So. 3d 94, 100 n.7 (Fla. 4th DCA 2016) (addressing challenge to the Daubert amendment and noting “statutes are presumed to be constitutional and are to be given effect until declared otherwise.”) 25 197 So. 3d 1109, 1110 (Fla. 4th DCA 2016). 26 197 So. 3d at 1110 (emphasis added). The Florida Supreme Court has held in the criminal context that the Daubert amendments do “not

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www.FloridaJusticeAssociation.org | March/April 2017 | 39

EVIDENCE

A BATTLE WON,

A WAR CONTINUES by G.C. Murray, Jr., FJA Deputy General Counsel

n a major victory for civil justice advocates, the Florida Supreme Court has declined to adopt, to the extent they are procedural, the changes to the Florida Evidence Code and statutes created by the 2013 passage of the Daubert and “Same Specialty” legislation. In its declination of both Daubert and “Same Specialty” the Court wrote: It has been this Court’s policy to adopt, to the extent they are procedural, provisions of the Florida Evidence Code as they are enacted and amended by the Legislature. However, on occasion the Court has declined to adopt legislative changes to the Evidence Code because of significant concerns about the amendments, including concerns about the constitutionality of an amendment. This is a great victory for Florida’s citizens who are attempting to get their day in court but the fight is NOT over. In its opinion, the Court cited the concerns raised by civil justice advocates about the undermining of the fundamental right to a jury trial, the denial of access to the courts for redress, and prejudice to the administration of justice. It is still critical to have Daubert and “Same Specialty” ruled unconstitutional which will likely only occur through a case and controversy coming before the Court. If Daubert or “Same Specialty” are used in a case you are litigating, please remember to raise and preserve the Separation of Powers constitutionality argument based on Daubert and “Same Specialty” being procedural laws. FJA is particularly interested in knowing how the judges in your circuit are handling the ruling from the Florida Supreme Court, what cases you know of going on appeal with these issues, and how we can help. Check our FJA website on our Court Cases page for more information and resources. If you have cases going on appeal with Daubert or “Same Specialty,” please contact me at gcmurray@floridajusticeassociation.org. Many thanks to all the FJA members who served on the Florida Bar’s Code and Rules of Evidence Committee [CREC] (which recommended against the adoption of Daubert and “Same Specialty” in its Three-Year Cycle Report) or the Florida Bar Board of Governors (which adopted CREC’s recommendations on “Same Specialty” and Daubert). Those two votes are tangible examples of how being involved in the Florida Bar can, and often does, affect your practice. Thanks, in particular, to Wayne Hogan, who authored the majority report on Daubert for CREC and testified at oral argument; Andy Hamilton, who authored the majority report on “Same Specialty” for CREC and testified at oral argument; Peter Sartes, the Chair of CREC at the time of the deliberations and reports; and Howard Coker and Dan Cytryn who also testified at oral argument. Special thanks to the FJA Florida Bar/Judicial Liaison Committee, especially Chris Searcy, Neal Roth, Phil Freidin, Thomas Hall, Bryan Gowdy, John Mills, and Scott McMillen, who served as Chair of the committee. Many thanks to those who have fought in the trenches and have battled against these issues on behalf of FJA, especially Troy Rafferty, who chaired the FJA Daubert Committee; Rich Newsome, Tom Edwards, Leslie Kroger, Wayne Hogan, and Bard Rockenbach who consistently, along with Troy Rafferty, testified against Daubert; and Ken Sobel, who chaired the FJA Medical Malpractice Committee, Jimmy Gustafson, Maria Tejedor, Dana Brooks and the multitude of members who consistently testified against the “Same Specialty” legislation. Thank you to our Legislative team who fought against Daubert and “Same Specialty” in the legislative process for nearly a decade.

FJA Deputy General Counsel G.C. Murray, Jr. served as staff lead on the Daubert and “Same Specialty” issues. 40 | March/April 2017 | www.FloridaJusticeAssociation.org

apply retroactively.” Anderson v. State, 2017 WL 930924 at *12 (Fla. Mar. 9, 2017) (citing Zakrzewski v. State, 147 So. 3d 531 (Fla. 2014) (table op.)). It did not analyze the procedure/substance issue. 27 Id. at 1110 n.1. 28 The decisions addressed only section 90.702, but the reasoning and prior precedent discussed here apply equally to the amendment to 90.704 which is purely procedural because it changes pre-existing law only by requiring a trial court to engage in a reverse-403 analysis in determining the admissibility of evidence relied upon by an expert. 29 Massey, 979 So. 2d at 936-37 (quoting Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So. 2d 730, 732 (Fla. 1991)). 30 Id. 31 Id. at 937 (emphasis added). 32 Bunin, 197 So. 3d at 1110. 33 870 So. 2d 152 (Fla. 2d DCA 2004). See also, e.g., Caple v. Tuttle’s Design-Build, 753 So. 2d 49, 54 (Fla. 2000) (rejecting constitutional challenge to statute creating procedure to obtain a prejudgment order for interest because it “creates substantive rights and any procedural provisions contained [in the statute] are intimately related to the definition of those substantive rights.”) 34 Order Denying Defendant’s Motion Pursuant to Daubert to Prohibit Plaintiff from Presenting Misleading Evidence From Stephen Kreitzer, 50200CA024426, Circuit Court in and for Palm Beach County, Fla. (Feb. 27, 2017) (Sasser, J.) at 7 (citing cases and citing a law review article for the proposition “the Sixth, Seventh, and Tenth Circuits have stated categorically that Federal Rule of Evidence 702 governs the admissibility of experts in diversity actions because the issue is a procedural one.”). See also, e.g., Ballard v. Keen Transp., 2011 WL 474814 at *1 (S.D. Ga. Feb. 3, 2011) (“While Georgia law controls the substantive issues in this diversity case, federal law applies to this procedural question of admissibility.”); Boudreaux v. J.P. Morgan Chase & Co., 2007 WL 4162908 at *3 n.1 (E.D. La. 2007) (“As Daubert is an evidentiary standard, it is procedural in nature, and its provisions apply in this diversity action.”). 35 Tumlinson v, Advanced Micro Devices, 106 A.3d 983, 990 (Del. 2013); Seisinger v. Siebel, 203 P.3d 483, 492-93 (Ariz. 2009).

2017 WL at *3. Mitchell v. Moore, 786 So. 2d 521, 527 (Fla. 2001) (emphasis added). 38 Id. at 527. 39 Id. at 528. 40 State v. J.P., 907 So. 2d 1101, 1110 (Fla. 2004). 41 Westphal v. City of St. Petersburg, 143 So. 3d 194 (Fla. 2016). 42 Pascual v. Dozier, 771 So. 2d 552, 554 (Fla. 3d DCA 2000) (emphasis added). See also Minakan v. Hustad, 27 So. 3d 695, 698 (Fla. 4th DCA 2010) (“Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on the party’s behalf.”) 43 Ch. 2013-107 (“Whereas” clauses), Laws of Fla. (2013). 44 Marsh, 977 So. 2d at 547. Marsh also expressly rejected Daubert in favor of Frye and pure opinion. 45 Harrell v. Cook, 169 F.3d 428, 432 (7th Cir. 1999). See also Germany v. Vance, 868 F. 2d 9 (1st Cir. 1989) (withholding evidence “that would enable an individual to prove a claim in court violates the individual’s constitutional right of access”) 46 R.C. v. State, 192 So. 3d 606, 609 (Fla. 2d DCA 2016) (“by adopting Daubert, the legislature made it clear that ‘pure opinion testimony,’ i.e., testimony based only on the personal experience and training of the expert, is no longer admissible”); Booker v. Sumter County Sheriff’s Office/N. Am. Risk Serv., 166 So. 3d 189, 192 (Fla. 1st DCA 2015) (“The Legislature’s adoption of the Daubert standard reflected its intent to prohibit ‘pure opinion testimony….’”). 47 See, e.g., Goodman, “A Hedgehog on the Witness Stand—What’s the Big Idea?: The Challenges of Using Daubert to Assess Social Science and Nonscientific Testimony,” 59 Am. U. L. Rev. 635 (2010); Heinzerling, “Doubting Daubert,” 14 J. Law & Policy 65 (2006); Crump, “The Trouble With Daubert-Kumho: Reconsidering the Supreme Court’s Philosophy of Science,” 68 Mo. L. Rev. 1 (2003). 48 Ch. 2013-107 (“Whereas” clauses), Laws of Fla. (2013). 49 Id. 50 625 So. 2d 827, 829 n.2 (Fla. 1993) (“We are mindful that the United States Supreme Court recently construed Rule 702 of the Federal Rules of Evidence as superseding the Frye test. However, Florida continues to adhere to the Frye test for the admissibility of scientific opinions.”) (citations omitted). 51 Brim, 695 So. 2d at 271-72. 52 Marsh, 977 So. 2d at 547. 53 Article I, §§ 16, 22, Fla. Const. 54 Hadden v. State, 690 So. 2d 573, 580 (Fla. 1997) (emphasis added). 36 37

Marsh, 977 So. 2d 543, 549 (emphasis added). Castillo, 854 So. 2d at 1276 (emphasis added). The Frye test itself does not require a judge to weigh evidence, only to inquire into general acceptance within the relevant scientific community. 57 Castillo, 854 So. 2d at 1276 (quoting In re Paoli Railroad Yard PBC Litig., 35 F.3d 717 (3d Cir. 1994)) (citations omitted) (emphasis added). 58 Id. (quoting Bert Black, Expert Evidence in the Wake of the DaubertJones-Kumho Tire Trilogy, SE01 ALI-ABA 125 (1999)). 59 Id. 60 The Fourth DCA recently wrote a Daubert opinion noting that “[t]rained experts commonly extrapolate from existing data …. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.” Crane Co., 206 So. 3d at 102 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997)) (emphasis added). While this is accurate and appropriate under Daubert, it is precisely what the Castillo court forbade under pre-existing Florida law. See also Maines v. Fox, 190 So. 2d 1135, 1141 (Fla. 1st DCA 2016) (“Under Daubert, a trial court exercises a gatekeeping function to ensure that any and all scientific evidence is not only relevant, but reliable. In doing so, the trial court may look at both underlying scientific reliability and whether there is simply too great an analytical gap between the underlying science and the expert’s opinion.”) (internal quotations and citations omitted). 61 Sullivan v. Sapp, 866 So. 2d 28, 39 (Fla. 2004). 62 §90.705, Fla. Stat. (2012). 63 Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard L. Rev. 460-61 (1897) 55 56

Matt Schultz Mr. Schultz is a shareholder at Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. in Pensacola. A former federal law clerk and research assistant to Charles Ehrhardt, he received his J.D. with highest honors from Florida State University in 2002, where he served as Senior Articles Editor of the FSU Law Review. He focuses on trial work with a current emphasis on the Engle progeny tobacco litigation.

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CIVILPROCEDURE

ENFORCEMENT OF FOREIGN JUDGMENTS by Roy D. Wasson

magine that a colleague of yours from outside Florida sent you a certified copy of a seven-figure judgment to be domesticated in this state for execution efforts against valuable property in Florida. Then imagine that you dutifully domesticated the judgment pursuant to the Uniform Enforcement of Foreign Judgments Act, §§55.501-55.509, Fla. Stat. and located some of those assets subject to execution. However, before you collect, a Florida trial court holds that the judgment cannot be enforced because the original state in which it was entered has a five-year statute of limitations on enforcement of judgments. The only thing worse than that would be for you appeal to the district court of appeal and that decision is affirmed.

for the enforcement of foreign judgments.” The Supreme Court stated that, “[w]ith respect to the statute of limitations question here, FEFJA does not contain its own statute of limitations. . . . Accordingly, we turn to Florida’s general statutory provision to determine a limitations period.” 2017 Fla. LEXIS 337 at *7. Section 95.11(1), Fla. Stat. provides a twenty-year limitations period on “[a]n action on a judgment or decree of a court of record in this state.” Subsection (2)(a) of that statute, however, provides a limitation period of five years for “[a]n action on a judgment or decree of any court, not of record, of this state or any court of the United States, any other state or territory in the United States, or a foreign country.” Id. (emphasis added).

The foregoing scenario unfolded in the case of Patrick v. Hess, No. SC15-1147 2017 Fla. LEXIS 337; 42 FLW S.174 (Fla. 2-16-17). The good news is, however, that the Supreme Court of Florida held that the foreign judgment was still valid in Florida, even though it no longer was viewed as valid in its originating state of Arizona.

In rejecting the argument that the five-year limitations period applied, the Court held: “We do not believe the legislature intended to subject a foreign judgment recorded under FEFJA to the enforcement limitations set forth in §95.11(2)(a) because, once recorded pursuant to the act, a foreign judgment is treated as a Florida judgment.” Id. at *8.

In the Patrick case, the plaintiff obtained a judgment from a federal district court in Arizona in the amount of $1,600,000.00. Within three years of that judgment, the plaintiff registered it under the Florida Enforcement of Foreign Judgment Act (“FEFJA”). “Because the Hesses failed to renew the judgment prior to the expiration of Arizona’s fiveyear statute of limitations, the judgment became unenforceable in Arizona in 2008.” Id. at *2. For that reason, the trial court quashed a writ of execution directed to valuable property held by the defendant in Florida. The trial court applied prior precedent including the Fifth District’s decision in Haigh v. Planning Board, 940 So.2d 1230 (Fla. 5th DCA 2006), which had stated that, under FEFJA, “proceedings to enforce a foreign judgment are derivative of the original judgment and are therefore subject to the limitations period in the jurisdiction where the judgment was originally rendered.” Id. at 1234. Thus, the plaintiff was unable to collect any of that $1.6 million because the Arizona statute of limitations for enforcing a judgment there was five years.

In affirming the Second District, the Supreme Court cited its earlier decision in Nadd v. Le Credit Lyonnais, S.A., 804 So.2d 1226 (Fla. 2001), in which the “Court addressed the statute of limitations applicable to a foreign judgment under Florida’s codification of the Uniform Foreign Money Judgment Recognition Act (UFMJRA)–a similar law–and explained that ‘§95.11(1) provides that an action to enforce a judgment of a court of record of this state must be commenced within twenty years.’” Id. at *9. Therefore, even though the plaintiff no longer could enforce the judgment in question in Arizona, under Florida law “once a judgment is recorded and domesticated under FEFJA, it is treated as a judgment of this State and thus subject to the twenty-year limitations period contained in §95.11(1).” Id.

On appeal, the Second District reversed the trial court, and its decision was thereafter approved by the Supreme Court of Florida. The Supreme Court rejected the judgment debtor’s argument that the plaintiff could not enforce his judgment in Florida because it could not be enforced in Arizona. Section 55.502(4), Fla. Stat. seemed to support the judgment debtor’s position, wherein it states: “Nothing contained in this act shall be construed to alter, modify, or extend the limitation period applicable 42 | March/April 2017 | www.FloridaJusticeAssociation.org

Florida may be a haven for debtors with its laws making it difficult to execute on judgments. However, in a rare departure from the typical defendant-friendly result, foreign judgments may be enforced in this state even after they have expired in their home state. It is always difficult to execute on judgments that are not within the scope of liability insurance coverage. The Patrick decision may make it just a little bit easier. Case Summaries in Civil Procedure – State Court Newly Discovered Evidence as Grounds for New Trial. In reversing the trial court’s grant of a new trial sought pursuant to Fla. R. Civ. P. 1.530 the First District Court of Appeal held that the trial court

abused its discretion in granting the motion based on newly discovered evidence, because the appellee failed to meet its burden of establishing that it could have not discovered the evidence in the exercise of due diligence prior to the conclusion of trial. The appellee’s contention that a new trial was warranted because a key document had been lost, mishandled or forgotten is insufficient to grant a new trial. See Cleveland v. Crown Fin. LLC, So.3d , 42 FLW D505, No., N.D. 16-3981; 2017 Fla. App. LEXIS 2741 (Fla. 1st DCA 3-1-17). Proposal for Settlement Enforceable as Unambiguous. The Third District of Appeal, in another decision rejecting the “nit picking” style of an analysis that many courts have used for the last few years, held that a proposal for settlement was enforceable notwithstanding the defendants’ argument that it could be read to require acceptance by each of the defendants to be enforceable. “Looking at the complete language of the Proposal for Settlement and the attached general release form to be signed by Swift & Key Haven, we find no requirement that both defendants must agree in order to effectuate the settlement. While in some instances Swift & Key Haven are referred to as defendants, plural, this is simply a matter of convenience. The settlement amount is apportioned between the two defendants and the general release form allows for the defendants to sign separately.” Atlantic Civ., Inc. v. Swift¸ So.3d , 42 FLW D516 2017 Fla. App. LEXIS 2755 (Fla. 3d DCA Mar. 1, 2017). PIP Pre-Litigation Discovery Limited. The Supreme Court of Florida in State Farm Mut. Auto. Ins. Co. v. Shands Jacksonville Med. Ctr., Inc., So.3d , 42 FLW S176, 2017 Fla. LEXIS 341 (Fla. 2-1617), disapproved an earlier decision from the Fourth District Court of Appeal that had held that pre-litigation discovery in a PIP case permitted discovery over the reasonableness of the medical charges. The court held that the scope of permissible pre-discovery by a PIP insurer under §627.736 (6)(c), Fla. Stat., was limited to the specific facts of treatments, the related billing of the injured person, and the production of documents described in §627.736 (6)(b). The Supreme Court approved the decision of the intermediate appellate court reversing the trial court requiring the PIP medical provider to make available a designated corporate representative for deposition prior to litigation being filed. Punitive Damages–Pleading and Proffer. In Varnedore v. Copeland, 2017 Fla. App. LEXIS 1658, So.3d , 42 FLW D360 (Fla. 5th DCA 2-10-17), the court quashed an order granting leave to amend to plead punitive damages, based partly on pleading problems and partly on problems with the proffer. The court first held that leave to amend should not have been granted because the proposed amended complaint was not attached to the motion to amend as required by Fla. R. Civ. P. 1.190(a). More substantively, the court held that it was error to consider an oral proffer of evidence at the hearing on the motion for leave to amend. The court held “we conclude that the term ‘proffer’ for purposes of Rule 1.190(f ) refers only to timely filed documents and excludes oral representations of additional evidence made during the hearing.” Id. at *10. Dismissal For Failure To Prosecute. The Third District Court of Appeal reversed a trial court’s FWOP order dismissing an action for lack of prosecution. The court held that it was error to deny the plaintiff’s motion to vacate an order of dismissal under Fla. R. Civ.

P. 1.420(e) because the action had been properly stayed by a prior judge. Further, counsel received no notice of a case management conference or subsequent order of dismissal for failure to attend that conference, rendering the dismissal order void. Gomez v. State Farm Fla. Ins. Co., 2017 Fla. App. LEXIS 27, So.3d , 42 FLW D113 (Fla. 3d DCA 1-4-17). Proposal for Settlement–Failure To Mention Attorneys’ Fees. In another case recognizing the enforceability of proposals for settlement notwithstanding minor deviations from the requirements of Rule 1.442, the Fourth District Court of Appeal held that the trial court erred in invalidating the defendant’s proposal for settlement because it used the word “claims” instead of “damages,” and held that it was unnecessary for the proposal to state whether attorneys’ fees were a part of the legal claim when the insured’s complaint did not request attorneys’ fees. American Home Assur. Co. v. D’Agostino, So.3d , 42 FLW D2771, 2017 Fla. App. LEXIS 80 (Fla. 4th DCA 1-4-17). Rule 1.540(B)(4) Applies to Void “Orders” Not Just “Judgments.” In an en banc decision vacating an earlier panel opinion, the Third District Court of Appeal in De La Osa v. Wells Fargo Bank, N.A., No. 3d14-1455; 2016 Fla. App. LEXIS 18361 (Fla. 3d DCA Dec. 14, 2016), held that it was “error of the panel to reverse an order setting aside a final order as void pursuant to Fla. R. Civ. P. 1.540(b)(4) on the ground that the rule by its terms applied only to a void judgment.” The court held that any difference between a final judgment, final decree, and final order was eliminated long ago when equity was merged into law. Complaint Mistakenly Sues Non-Existent Party–Leave To Amend Required. In Spradley v. Spradley, No. 2D15-4850; 2017 Fla. App. LEXIS 3034. So.3d , 42 FLW D548 (Fla. 2d DCA 3-8-17), the Second District reversed the trial court’s dismissal of the plaintiff’s complaint which had been filed naming a non-existent entity as the only defendant. The plaintiff had initially sued a decedent’s “estate” without identifying the personal representative as the proper party. The court found “that the trial court erred in failing to grant Mr. Spradley leave to amend his complaint to substitute the proper party … [because] it is well-settled that an ‘Estate is not an entity that can be a party to litigation. It is the personal representative of the estate, in a representative capacity that is the proper party.’” Id. at *4. These are some of the major decisions in the field of civil procedure since our last Journal column on that subject. It may be impossible to keep up with all the rapidly-evolving law in this area; all we can do is: Keep Tryin’! Roy D. Wasson is board certified in Appellate Practice with extensive courtroom experience in more than 600 appeals and thousands of trial court cases. He is an EAGLE Patron, a former member of the FJA board of directors, a Fellow of the Academy of Florida Trial Lawyers, a past chairman of the FJA Appellate Practice Section, and a member and past chair of the Amicus Curiae Committee. Roy is a recipient of the FJA Gold EAGLE, Silver EAGLE and Bronze EAGLE awards, th. Legislative Leadership Shoe Leather Award, and the S. Victor Tipton Award for Legal Writing. He has served as chair of The Florida Bar Appellate Court Rules Committee, its Appellate Certification Committee, and its Appellate Practice Section.

www.FloridaJusticeAssociation.org | March/April 2017 | 43

CLOSINGARGUMENT

CLOSING ARGUMENTS

About the Opponent’s Right to Assert or to Defend Against a Claim by Philip M. Burlington, Barbara Green and Christopher V. Carlyle

party’s right to assert a claim, or to defend against a claim, is not an issue for the jury to decide. Accordingly, it is not a proper subject for closing argument. Such arguments can take different forms, from accusations that the plaintiff, by suing, is causing overcrowded courtrooms or an insurance crisis, to arguments that the defendant has failed to accept responsibility, or must be forced to do the right thing. Courts have disapproved arguments about a party’s choice to litigate, or how a party chooses to litigate, unless punitive damages are at issue. Even where punitive damages are at issue, some courts have required a new trial where the plaintiff’s argument taints the compensatory damages portion of the case. The courts have used a variety of rationales. Often, they will point out that the argument is outside the evidence, distracts the jury’s focus from the real issues in the case, or appeals to jurors’ emotions, or attacks the legal profession. Some courts call these kinds of arguments improper appeals to the “conscience of the community.” All of these grounds should be raised in objections, motions for mistrial, and motions for new trial. Arguments by Defendants Defendants may challenge a plaintiff’s right to bring a claim in a number of ways that courts have found to be outside the evidence or to improperly appeal to the conscience of the community. In Stokes v. Wet ‘N Wild, Inc., 523 So.2d 181, 182 (Fla. 5th DCA 1988), the defense characterized the plaintiff’s damages demand as excessive and “absolutely ridiculous.” He then argued:

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This is why we’re here. This is why our courtrooms are crowded and this is why we read articles in the newspaper, because of things like that. The trial court refused to give a curative instruction. The district court of appeal reversed, holding that the argument was “highly improper” because “the reference to problems of overcrowded courtrooms is clearly an attempt to appeal to the conscience of the community and matters far afield of the evidence in the case.” Similarly, in Davidoff v. Segert, 551 So.2d 1274 (Fla. 4th DCA 1989), the court held that a defendant’s argument about the “insurance crisis” was an appeal to the conscience of the community, and held that its “effect on the jury’s ability to judge the evidence fairly warrants the granting of a new trial.” 551 So.2d at 1275. And, in Fowler v. Goldring Corp., 582 So.2d 802 (Fla. 1st DCA 1991), the court reversed and remanded for a new trial because of the defendant’s description of plaintiff’s case as the “new American dream,” calling it a “blatant appeal to the sympathy and prejudice of the jurors [that] was not based upon any facts in evidence in this proceeding.” 582 So.2d at 803. In Schubert v. Allstate Ins. Co., 603 So.2d 554 (Fla. 5th DCA 1992), the defense attorney’s arguments included a direct attack on the plaintiff for seeking compensation through the legal system: “Don’t, don’t let little Nicholas [appellant’s child] think that this is the way you get from one end of life to the other.” He [defense counsel] also said, “I’m here to tell you the truth” and that plaintiff ... “should have said thank goodness I wasn’t injured more seriously” instead of seeking recompense for what injuries she got. ... 603 So.2d at 555. The court found the cumulative effect of these and other improper arguments required a new trial, even without an objection. The dissent agreed that the arguments were improper, but

would have ruled that they were not egregious enough to require a new trial in the absence of timely objections which could have forestalled the later improper arguments. Courts have found other, related arguments not to constitute fundamental error, even though they may be improper. When a defendant accuses a plaintiff of treating the courtroom like a lottery, or characterizes the plaintiff’s case as cashing in on a lottery ticket, courts require an objection and motion for mistrial. Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1032 (Fla. 2000); Hang Thu Hguyen v. Wigley, 161 So3d 486 (Fla. 5th DCA 2014) (“[Plaintiff] has filed a lawsuit. This is a courtroom, not a lottery;” no new trial where objection sustained, curative instruction given, and plaintiff failed to move for mistrial); Russell v. Guider, 362 So.2d 55 (Fla. 4th DCA 1978) (argument about relationship between verdicts and rising insurance rates “emotional” and “clearly improper” but not fundamental). However, where the plaintiff made an appropriate objection and motion for mistrial, one court found that a comment about the lottery in opening statement was one of several instances of misconduct that combined to make a new trial necessary. Irizarry v. Moore, 84 So.3d 1069 (Fla. 5th DCA 2012). Although courts sometimes allow “fair reply” to improper arguments, see, e.g., Owens-Corning Fiberglass Corp. v. McKenna, 726 So.2d 361 (Fla. 3d DCA 1999), counsel should proceed carefully. It can be reversible error for a plaintiff to respond to an improper defense argument with a similarly improper argument of his own. In Bellsouth Human Resources Admin., Inc. v. Colatarci, 641 So.2d 427 (Fla. 4th DCA 1994), in the course of granting a defendant a new trial because of the plaintiff’s improper arguments, the court also disapproved part of the defense closing argument to which the plaintiff was attempting to respond: It is, indeed, I think, alarming that trial lawyers will come before six people in the community and hope to be able to get those six members of the jury to give them a $1,500,000 for a broken leg. It seems to say I think a lot about the deterioration of our society. ... ... It says a great deal. And, certainly, it is a problem for [plaintiff’s counsel] because it says a great deal about the deterioration of our system, a broken leg a million dollars. A broken leg a million and a half dollars. What is it about our system that has created a situation that every time we do something if it doesn’t turn out the way we thought we sue. 641 So.2d at 429. The trial court did not sustain the plaintiff’s objections, telling plaintiff, “you can rebut.” Id. The district court of appeal held that this defense argument was improper, both as a “conscience of the community” argument and as an attack on the legal profession, and could justify referral of the defense lawyer to the Bar. But the court held it did not justify the plaintiff’s improper rebuttal arguments about “corporate America,” exploding gas tanks, agent orange and silicone breast implants. The court did point out that the problem would have been avoided if the trial court had sustained the plaintiff’s objections to the defense arguments.

Colatarci should serve as a cautionary tale about how to handle your opponent’s improper argument. Object, state all of the grounds, and move for mistrial. Resist the temptation to respond in kind, even if that is the only relief the trial judge will allow. Arguments by Plaintiffs In the past several years, courts seem to have become especially critical of plaintiffs’ arguments that appear to ask the jury to punish the defendant for defending the case, or for how the defendant defended the case. In Intramed v. Guider, 93 So.3d 503 (Fla. 4th DCA 2012), the court held that the plaintiff’s closing argument “switched the focus of the case from proper issues - the plaintiff’s life expectancy and past and future damages - to punishing the defendant for the ‘wrongful conduct’ of defending the case in court.” 93 So.3d at 506-507. The arguments included: • The only way to get this company to care is to force them to pay all of the harms they have caused. That’s what the law is for, to get a company to care, to change, to do what is right. ... • They have never taken responsibility. They have been forced to admit they sent the wrong medication ... and they still take zero responsibility. ... • How did they respond? Have you heard sorry once in this courtroom, we are sorry we sent you the wrong medication? ... Not one time have you heard that, not from there, not anywhere.... • There are things your verdict cannot fix ... But you can fix the harms that were caused her, the way they defend this case. ... • [The defendant] will get off cheap. [The defendant] will sweep it under the rug. [The defendant] will move on. [The defendant] won’t change. [The defendant] won’t care. ... • It doesn’t matter what [the defendant] do[es] as a company. [They] can get off cheap if [they] want. Slap on the wrist. ... • How do you ask her that? How do you defend yourself that way? How does a company defend itself that way? ... 93 So.3d at 507. The court found that the trial court “green lighted this theme,” which “improperly suggested that the defendant should be punished for contesting damages at trial and that its defense of the claim in court was improper.” 93 So.3d at 507. The argument “was designed to inflame the jury,” and “urged the jury to punish the defendant for having the temerity to be in court.” The court reversed and remanded for a new trial on damages. Similarly, in Carnival Corp. v. Pajares, 972 So.2d 973 (Fla. 3d DCA 2007), the plaintiff’s closing went beyond attacking the evidentiary basis of the defendant’s theory that the plaintiff’s stroke was caused by his smoking, and instead attacked the defendant for asserting that defense at all. In Pajares, the plaintiff argued, “They won’t accept responsibility. They won’t accept the harm that they have caused him. They are fighting on both. It is time to hold them responsible.” The court said that this amounted to suggesting “that Carnival should be punished for defending Pajares’ claim at all ...”. 972 So.2d at 977-978. The court found the cumulative effect of this and other arguments required a new trial.

CLOSINGARGUMENT

As the court stated in Fasani v. Kowalski, 43 So.3d 805 (Fla. 3d DCA 2010), “it is improper for an attorney to disparage an opposing party’s defense of a case or to suggest that a party should be punished for contesting a claim.” 43 So.3d at 809. In Fasani, the court found that the plaintiff violated both of these rules. He accused the defendant of “kick[ing] [the plaintiff] out and say[ing] we’re giving you nothing,” and of having “drug him through all of this.” He argued that the defendant failed “to do the right thing” even though the defendant knew it was at fault. He attributed the defendant’s behavior to “corporate greed and arrogance.” He told the jury to make them do the right thing because they haven’t done it on their own and they have no intentions on doing it on their own. You’re going to have to make them do the right thing. 43 So.3d at 810. The court held that this was an improper request that the jury punish the defendant. It was not relevant to any issue in the case, but appealed to the juror’s emotions, and was inflammatory and prejudicial, requiring a new trial. Courts also have also found reversible error in arguments that chastise defendants for how they defended a case. For example, in Carnival Cruise Lines, Inc. v. Rosania, 546 So.2d 736 (Fla. 3d DCA 1989), the improper arguments included accusations that the defendant “want[s] to hide the truth,” looked for ways to “taint” the plaintiff, and “put roadblock after roadblock” in front of the plaintiff. The argument exhorted the jury to “think about how Carnival Cruise Lines defended this particular case.” 546 So.2d at 737 n.1. Arguments about the defendant’s defense of the case or failure to accept responsibility do not always create reversible error. For example, in City of Miami v. Kinser, 187 So.3d 921 (Fla. 3d DCA 2016), the plaintiff argued, “It’s another thing altogether to say, we know we created this problem but we did nothing wrong. When a bear steps in a trap and breaks its leg, is it the bear’s fault?” 187 So.3d at 924. The court found that the plaintiff improperly denigrated the defense for asserting a valid defense, but that the argument, even combined with other improper arguments, was harmless, because the trial court sustained objections and gave curative instructions. And, in Mercury Ins. Co. of Fla. v. Moreta, 957 So.2d 1242 (Fla. 2d DCA 2007), the court found that the arguments were improper, but there was no reversible error where the defendant, an uninsured motorist carrier, did not preserve its objections to closing arguments. The arguments included criticism of the insurer’s alleged litigation practices and tactics, and rebukes of the insurer for breaching its contractual obligation to its insured, such as: • Now, the recurring theme in a Mercury insurance case is to blame anything and everything but the accident for the injury. And when that doesn’t work, they say, “We don’t know what it was but it just wasn’t the motor vehicle accident that caused these problems.” ... • [T]rial by jury should be a search for the truth and not a win at all costs. What’s worse is this is their own insured.

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• Now, even though this is an adversarial relationship, technically, the reality is that Mr. Moreta’s insured by Mercury. And you got-one must remember that when one points the finger at somebody else, three fingers are pointing back to themselves. I suggest to you that three fingers are pointing back to themselves in this case for the way they’ve treated him. ... • I believe that there are no coincidences in life, that things happen for a reason; and that you’re on this jury for a reason, that you’re on this jury because you’re going to right that wrong, and because you’re going to use your immense power as a juror to award restitution. • Now, the lack of accepting responsibility is one of the biggest problems that we face in our society today ... and that people don’t want to spent [sic] responsibilities for their actions. And, in fact, corporations are fictional people. 957 So.2d at 1248-49. Plaintiff’s counsel went on to talk about a book he said was called “I Learned Everything I Needed to Know in Kindergarten.” • [C]lean up after your own mess, that’s something we can use; and be responsible for your actions. We’re asking Mercury to read that book and not try to avoid their responsibility by coming in here and asking you to award less than [the] full amount of damages. ... • [Mr. Moreta] has a contract with Mercury. They’re trying to avoid their responsibility. He has a relationship with Mercury. It’s a contractual relationship, and we’re asking them to live up to their responsibility under the contract. We’re asking for the full amount of this compensation in the amount of $1.5 million. .... • One thing we really do agree on is this is wrong, it’s wrong what they’re doing to their own insured. It ain’t right. They have a handshake agreement, that’s what a contract is, handshake, they have a contract and they’re not living up to the terms and conditions of the contract, and we ask that you hold them to it. 957 So.2d at 1249. Although that argument in Moreta did not satisfy the stringent fundamental error test for unpreserved error set out in Murphy v. Int’l Robotics Sys., Inc., 766 So.2d 1010 (Fla. 2000), there are a number of uninsured motorist cases reversing for a new trial because of similar arguments accusing the insurer of refusing to take responsibility or to live up to its obligations to its insured. For example, in State Farm Mut. Auto. Ins. Co. v. Gold, 186 So.3d 1061 (Fla. 4th DCA 2016), the court reversed because the plaintiff argued: We’re here because Mr. Gold had purchased uninsured motorist coverage so this wouldn’t happen. State Farm has denied his claim and now he’s facing down a stack of medical bills. And he’s been carrying this burden with him until today and State Farm to this day, to this minute has never

taken responsibility for the damages in the crash and for the injuries that are covered under this policy, and they’re not going to do it until you force them to do it with your verdict. The plaintiff also put up a PowerPoint accusing the insurer of “refus[ing] to take responsiblity for the debt it owes to Mr. Gold, forcing us to bring them to trial,” and stating, “Gold has done the right thing all along. Has the Defendant?” 186 So.3d at 1062. The court held that the cumulative effect of this argument, the PowerPoint, plus jury instructions that focused on the insurer’s culpability rather than on the issue of damages, improperly suggested that the defendant should be punished for defending the claim, and warranted a new trial. The court relied on Allstate Ins. Co. v. Marotta, 125 So.3d 956 (Fla. 4th DCA 2013), where the plaintiff argued that Allstate “denied accepting responsibility. I ask you, is that what it means to be in good hands?” The plaintiff in Marotta argued that it was not enough for Allstate to “repent,” but that it should also “accept full responsibility” and “do everything necessary to make it right;” and that it consistently, in this case, didn’t want to accept the responsibility at all for causing the accident, the uninsured motorist carrier and they still don’t want to accept the responsibility to ... make up all of the losses and harms caused by this automobile crash. ... He beseeched the jury to “make Allstate repent, make them take responsibility for what was caused by that uninsured motorist and make them pay for all of the harms and losses caused.” 125 So.3d at 958-959. The court stated: It is improper for counsel to suggest in closing argument that a ‘defendant should be punished for contesting damages at trial’ or that defending a ‘claim in court’ is improper. The court held this argument, combined with improper impeachment of a defense expert, and other improper argument that was not preserved, cumulatively had a prejudicial effect, and required a new trial. See also Carvajal v. Penland, 120 So.3d 6 (Fla. 2d DCA 2013) (accusing insurer of “shirking its responsibilities” and acting in bad faith); State Farm Mut. Auto. Ins. Co. v. Thorne, 110 So.3d 66, 73-75 (Fla. 2d DCA 2013) (describing defendants’ causation defense as speculation that was “simply an attempt to avoid responsibility,” and ending with “shame on these defendants”). In uninsured motorist cases, these arguments sometimes use failure to accept responsibility as a means to suggest that the case is solely a contract case, and that the insurer breached its contract by failing to pay the plaintiff’s damages. Issues unique to uninsured motorist cases are discussed in a separate article. See FJA Journal, July/August 2016 at 46-48. Punitive Damages Cases Punitive damages cases present special problems. The defendant’s failure to accept responsibility is a factor that at least one court has allowed the jury to consider in determining whether to award punitive damages. See R.J. Reynolds Tobacco Co. v. Odom, So.3d , 42 FLW

D2670, 2016 WL 6992162, *5 - *6 (Fla. 4th DCA 11-30-16). The courts sometimes have allowed juries to consider the “attitude and conduct of [the defendant] upon discovery of the misconduct” and the defendant’s “apparent indifference to the health and safety” of its customers. Owens-Corning Fiberglas Corp. v. Ballard, 749 So. 2d 483, 485, 487 (Fla. 1999). But even when punitive damages are at issue, some courts have found reversible error in arguments that accuse a defendant of failing to take responsibility for its actions, where compensatory damages are at issue in the same phase of the trial. This appears to be a problem that arises in tobacco cases due to the unique history of the tobacco industry and the unique nature of tobacco litigation. Those cases will be discussed in a separate article. In the usual trial in which punitive damages are in issue, liability, compensatory damages and entitlement to punitive damages are tried in the same phase of the trial. See, e.g., St. Paul Mercury Ins. Co. v. Coucher, 837 So.2d 483 (Fla. 5th DCA 2002). In those cases, counsel should be especially careful about arguments that seek punitive damages because of the defendant’s failure to accept responsibility. Conclusion Unless the only issue is punitive damages, plaintiffs should avoid attacking defendants for defending the case. When a defendant attacks the plaintiff for asserting a claim, it is important to raise all pertinent objections, request a curative instruction and move for mistrial. Objections may include that the argument is outside the evidence, attacks plaintiff’s right to assert a claim, attacks the legal profession, appeals to the conscience of the community, appeals to jurors’ sympathies and prejudices, and is prejudicial and inflammatory.

Philip M. Burlington

is a partner in the law firm of Burlington & Rockenbach, P.A. He is a Board Certified Appellate Practice attorney, who limits his practice to trial support and appeals in civil cases. Admitted to The Florida Bar in 1979, he received his B.A. degree at Johns Hopkins University in 1975 and his J.D. degree at the University of Florida in 1978. Mr. Burlington has served as Chairman of the FJA Amicus Curiae Committee and is a member of the FJA Board of Directors. Mr. Burlington is the recipient of the 2000 S. Victor Tipton Award for achievement in legal writing.

Barbara Green handles appeals and litigation support for plaintiffs in civil cases. Admitted to The Florida Bar in 1978, Ms. Green received her B.A. from the Univ. of Florida in 1973 and her J.D. from the Univ. of Miami in 1978. Active in the FJA since 1982, Ms. Green serves on and has written numerous briefs for the FJA Amicus Committee and provides the Caselaw Update for the Miami-Dade Justice Assn. She is a recipient of the S. Victor Tipton Award for superior achievement in legal writing and the Dade County Trial Lawyers Assn. Stalwarts Award for continuous contribution to the cause of justice.

Christopher V. Carlyle

is Board Certified in Appellate Practice and practices exclusively in the area of civil appellate litigation as a shareholder with The Carlyle Appellate Law Firm. Mr. Carlyle is Chair of the Appellate Practice Section of The Florida Bar, and he has served on the Bar’s Appellate Court Rules Committee since 2009. He graduated in 1993 from the Pepperdine University School of Law, cum laude, where he served as an associate editor of the Pepperdine Law Review. Mr. Carlyle, along with his wife Shannon, received the 2012 S. Victor Tipton Award for superior achievement in legal writing.

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AMENDMENT 7 LIVES AGAIN

But Be Prepared for More Attempts to Kill It

by Bryan Gowdy

n 2004, over 5.8 million Florida voters (80 plus percent of the electorate) voted in favor of Amendment 7. That constitutional amendment granted patients a broad right to access records of adverse medical incidents. The amendment’s purpose was to tear down all legal barriers that stopped patients from learning about adverse medical incidents. Fla. Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478, 489 (Fla. 2008). Since its passage, Amendment 7’s opponents repeatedly have tried to kill it. These attempts have largely failed.1

Undeterred, opponents recently tried to kill Amendment 7 by trotting out a federal statute, the Patient Safety Quality Improvement Act of 2005 (PSQIA). This federal statute, opponents claimed, preempted Amendment 7. The First District Court of Appeal agreed, effectively declaring Amendment 7 dead under the PSQIA and the Supremacy Clause of the U.S. Constitution. Southern Baptist Hosp. of Florida, Inc. v. Charles, 178 So. 3d 102, 110-11 (Fla. 1st DCA 2015). Fortunately, however, the Supreme Court of Florida disagreed. Charles v. Southern Baptist Hosp. of Florida, Inc., SC152180, 2017 WL 411333 (Fla. Jan. 31, 2017). This article will first explain the Supreme Court’s resurrection of Amendment 7, and then will discuss strategies for fending off likely future attempts to kill and eradicate Amendment 7. The Supreme Court’s Charles decision The Charles family sued a hospital and other medical providers for medical malpractice that severely incapacitated the family’s mother. Her injuries required around-the-clock care and prevented her from caring for her children. To prove liability, Ms. Charles exercised her rights as a patient under Article 10, section 25 of the Florida Constitution, commonly called Amendment 7, by requesting certain state-mandated records of adverse incidents. On federal preemption grounds, the First District invalidated the state constitutional rights of Ms. Charles and patients throughout Florida. Specifically, it decided that the PSQIA preempted Amendment 7. Charles, 178 So. 3d at 110-11. The First District determined the PSQIA gave medical providers the “unilateral, unreviewable” discretion to make virtually any state-mandated record

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privileged by voluntarily storing a record in a patient safety evaluation system for reporting to a patient safety organization. Id. at 109. The Supreme Court reversed. It first reiterated that Amendment 7’s purpose “was to do away with the legislative restrictions on a Florida patient’s access to a medical provider’s history of acts, neglects, or defaults.” Id. at *2. It then discussed the purposes and operational framework of the federal PSQIA: The Federal Act creates a voluntary, confidential, non-punitive system of data sharing of health care errors for the purpose of improving the quality of medical care and patient safety. The Federal Act envisions a system in which each participating health care provider . . . establishes a patient safety evaluation system, in which relevant information would be collected, managed, and analyzed. 42 U.S.C. § 299b–21(6). After the information is collected in the patient safety evaluation system, the provider forwards the information to its patient safety organization, which then collects and analyzes the data and provides feedback and recommendations to providers on ways to improve patient safety and quality of care. See id. § 299b–24; 73 Fed. Reg. at 70,733. Information reported to patient safety organizations is also shared with a central clearing house, the Network of Patient Safety Databases, which aggregates the data and makes it available to providers as an “evidence-based management resource.” See 42 U.S.C. § 299b–23. In order to encourage and incentivize participation, within the Federal Act Congress created a protected legal environment in which providers would be comfortable sharing data “both within and across state lines, without the threat that the information will be used against [them].” 73 Fed. Reg. at 70,732. Privilege and confidentiality protections attach to the shared information, termed “patient safety work product,” “to encourage providers to share this information without fear of liability.” Id.; see 42 U.S.C. § 299b–22(a)–(b). These protections are “the foundation to furthering the overall goal of the statute to develop a national system for analyzing and learning from patient safety events.” 73 Fed. Reg. at 70,741. Id. at *2–3. After reciting the PSQIA’s text, the Supreme Court explained that the First District was wrong to kill Amendment 7. The PSQIA did not conflict with state law, but rather expressly preserved and incorporated a provider’s state-law obligations: Charles asserts that the Federal Act expressly preserves and incorporates, rather than preempts, a provider’s reporting and recordkeeping obligations under state law. We agree. Congress carved out broad exceptions to the Federal Act’s definition of patient safety work product. For example, patient safety work product “does not include a patient’s medical record, billing and discharge information, or any other original patient or provider record.” 42 U.S.C. § 299b– 21(7)(B)(i). Significantly, patient safety work product also

“does not include information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system. Such separate information or a copy thereof reported to a patient safety organization shall not by reason of its reporting be considered patient safety work product.” Id. § 299b–21(7)(B)(ii). Moreover, the Federal Act clearly states that it should not be construed to “limit, alter, or affect the requirements of Federal, State, or local law pertaining to information that is not privileged or confidential under [the Federal Act].” Id. § 299b–22(g)(2). Consistent with these provisions of the Federal Act, Florida has various statutes and rules, many of which pre-date the Federal Act, that require a health care provider to create and maintain adverse medical incident reports. See § 395.0197(4)–(7), Fla. Stat. (2015) (requiring risk program that includes adverse incident reports); see also Fla. Admin. Code R. 59A–10.0055 (establishing risk management system to report adverse incidents to the Florida Agency for Health Care Administration). Amendment 7 provides individuals the right to access “any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” Art. X, § 25(a), Fla. Const. In other words, health care providers are required by state law to keep adverse medical incident reports, and the right of patients to access those adverse medical incident reports is enshrined in Florida’s Constitution. Charles, 2017 WL 411333, at *7–8 (first internal citation omitted). The Supreme Court then rejected the First District’s broad interpretation of the PSQIA. It explained that “[t]here are numerous exceptions and limitations placed on the Federal Act.” Id. at *8. In particular, the Court noted that the PSQIA expressly stated it “shall not be construed to limit ‘the discovery of or admissibility of information . . . in a criminal, civil, or administrative proceeding,’” or ‘a provider’s recordkeeping obligation with respect to information . . . under Federal, State, or local law.’” Id. (quoting 42 U.S.C. §299b–21(7)(B)(iii)). Thus, the Court reasoned, adverse medical incident reports are not privileged under the PSQIA “because Florida statutes and administrative rules require providers to create and maintain these records and Amendment 7 provides patients with a constitutional right to access these records” and thus “they fall within the exception of information ‘collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system.’” Id. (quoting 42 U.S.C. §299b–21(7)(B) (ii)). Additionally, the Court ruled, “their disclosure fits squarely within the providers recordkeeping obligations under state law.” Id. (citing 42 U.S.C. §299b–21(7)(B)(iii).) Having considerably narrowed the First District’s overly expansive interpretation of the PSQIA, the Supreme Court easily dispensed with the notion that the PSQIA preempted Amendment 7: It is antithetical to the idea of preemption, which requires a clear expression of Congressional intent, that the Federal Act, which permits, but does not require provider participation, would preempt a state constitutional www.FloridaJusticeAssociation.org | March/April 2017 | 49

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amendment. In the context of the Federal Act’s scheme allowing for voluntary participation, it is clear that a mandatory disclosure law in our state constitution is not preempted by a health care provider’s choice to participate in the Federal Act, coupled with its choice to place documents into a patient safety evaluation system. Id. at *11. The Court also elaborated on: (i) the PSQIA’s legislative history, and (ii) legal guidance authored by the U.S. Department of Health and Human Services. Both of these, in conjunction with the statutory text, made it abundantly clear that “Congress did not intend to strip citizens of their pre-existing state right to information” or “deprive Florida citizens of such an important constitutional measure.” Id. at *11-12. The Supreme Court also expressly rejected two premises of the First District’s reasoning. First, it rejected the First District’s suggestion that “the primary purpose of medical malpractice actions” was “to punish the health care providers;” rather, the Supreme Court noted, the primary purpose was “to compensate the victim of medical malpractice who is many times severely injured.” Id. at *12. Second, the Supreme Court rejected the notion that the PSQIA’s “voluntary system for health care providers” was inconsistent with Amendment 7 or Florida law because, it reasoned, “medical malpractice actions can and should coexist with the [PSQIA].” Id. In addition, the Supreme Court quoted the U.S. Department of Health and Human Services’ guidance to explain how medical providers had been abusing the PSQIA framework to conceal records from patients: “First, some providers with recordkeeping or record maintenance requirements appear to be maintaining the required records only in their [patient safety evaluation system] and then refusing to disclose the records, asserting that the records in their [patient safety evaluation system] fulfill the applicable regulatory requirements while at the same time maintaining that the records are privileged and confidential [patient safety work product]. Second, some providers appear to develop records to meet external obligations outside of the [patient safety evaluation system], place a duplicate copy of the required record into the [patient safety evaluation system], then destroy the original outside of the [patient safety evaluation system] and refuse to disclose the remaining copy of the information, asserting that the copy is confidential and privileged [patient safety work product]. The Patient Safety Act was not intended to give providers such methods to evade their regulatory obligations.” Id. (internal alterations in the original) (quoting 81 Fed. Reg. 32,65501, 32,657-58). In summary, the Supreme Court overwhelmingly rebuked the latest effort to kill Amendment 7. Indeed, not a single justice defended the First District’s holding that the PSQIA preempted Amendment 7.2 Nevertheless, don’t expect opponents to lie down. They will continue 50 | March/April 2017 | www.FloridaJusticeAssociation.org

to try to kill, eradicate, and limit Amendment 7. Next, I propose strategies for defeating those efforts. Strategies for Defeating Likely Future Attempts to Kill or Limit Amendment 7 A patient may access all mandated information, not just incident reports. The records of adverse medical incidents primarily at issue in Charles were the hospital’s “occurrence reports.” See Charles, 2017 WL 411333, at *2, *3, *13. By statute, Florida requires all hospital providers and employees to report an adverse incident to the hospital’s risk manager within three business days of the “occurrence.” §395.0197(1)(e), Fla. Stat. (2016). These “occurrence reports” are also called 3-day reports. See id. Although the hospital in Charles resisted disclosing the 3-day reports, it conceded that it had to disclose its: (i) annual reports, which must be submitted to the Agency for Health Care Administration (AHCA) and which summarize the adverse incident reports, id. §§395.002(2), 395.0197(6)(a); and (ii) Code-15 reports, which must be submitted to AHCA with fifteen days of certain adverse incidents, id. at §395.0197(7). See Charles, 2017 WL 411333, at *3. Providers may argue that Charles requires them to produce only the 3-day occurrence reports, the Code-15 reports, and the annual reports. This is an incorrect reading of Charles. The Supreme Court expressly noted in its opinion that “Florida has various statutes and rules . . . that require a health care provider to create and maintain adverse medical incident reports.” Id. at *8 (emphasis added). Though not expressly mentioned in the Charles opinion, the appellants’ brief in Charles demanded that the hospital there produce records of adverse medical incidents created by peer review and medical review committees, as well as any root cause analyses. (Appellant’s Br. 15-16.) Such records are required by “various statutes and rules.” See, e.g., §§395.0193, 395.0197(1)(a), 766.101(7) Fla. Stat. (2016). Under Charles, providers cannot conceal records if they have an “independent obligation” to create, maintain, develop, or collect the records under a state or local law or a non-PSQIA federal law. Charles, 2017 WL 411333, at *9; see also 42 U.S.C. §299b-21(7)(B)(ii) (providing that “information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system” is not privileged); id. § 299b-21(7)(B)(iii)(III) (directing that nothing in the PSQIA shall be construed to limit “a provider’s recordkeeping obligation with respect to information … under Federal, State, or local law”). Furthermore, the PSQIA also exempts from its privilege any “patient’s medical record, billing and discharge information, or any other original patient or provider record.” Id. §299b-21(7)(B)(i) (emphasis added). The U.S. Department of Health and Human Services has interpreted non-privileged “original provider records” to include records “that are required of a provider to meet any Federal, state, or local public health or health oversight requirement regardless of whether such records are maintained inside or outside of the provider’s patient safety evaluation system.” Baptist Health Richmond, Inc. v. Clouse, 497 S.W.3d 759, 765 (Ky. 2016) (quoting 81 Fed. Reg. 32655-01, at 32657-58) (cited with approval at Charles, 2017 WL 411333, at *8-9).

Accordingly, the key for a patient to vitiate any PSQIA privilege claim is to request records of adverse medical incidents that providers must create, maintain, develop, or collect under any independent obligation found in any state, local, or non-PSQIA federal law. To overcome any PSQIA privilege claim, I suggest a patient frame his discovery request as follows: Pursuant to Article X, Section 25 of the Florida Constitution, please produce any and all information, records, and reports that qualify as records made or received in the course of business by you, any health care facility, or any provider that relate to any adverse medical incidents. Note: This request is limited to information, data, reports, records, memoranda, analyses (such as root cause analyses) that are either: (i) a patient’s medical record, billing and discharge information, or any other original patient or provider record; or (ii) collected, maintained or developed pursuant to any obligation or requirement in any state or federal law, rule, or regulation. This request includes, but is not limited to, documents created by you, or maintained by you pursuant to sections 395.0197, 766.010, and 395.0193 of the Florida Statutes and Florida Rule of Administration 59A-10.0055. This request includes, but is not limited to, your annual adverse incident summary report and any and all Code 15 Reports. This request, as limited, includes all documents that are not privileged under 42 U.S.C. section 299b-21(7)(b). See Charles v. Southern Baptist Hosp. of Florida, Inc., SC15-2180, 2017 WL 411333 (Fla. Jan. 31, 2017). What if the provider fails to maintain the required records? I often hear from trial attorneys that the provider-defendant has not maintained the records it was required to maintain under state or federal law. One option that all FJA members should follow is to report this failure to the appropriate regulatory agency, which in most instances is AHCA. Admittedly (at least based on my own anecdotal experience), you should not expect the regulatory agency to do much, if anything, about a provider’s failure to maintain a record. However, the more often a provider’s failures to maintain records are reported to the agencies, the more likely it is that we will eventually get the agencies to react appropriately. The analogy I make is crime reporting. While you cannot expect the police to solve every reported crime, the mere reporting of crime can attract the police’s attention and increase police presence where the crime is occurring. Another option that may provide more tangible relief to your individual client is to seek a spoliation remedy from the court. The Supreme Court of Florida recently commented on the remedies for spoliation of evidence, which include a rebuttable presumption or an adverse inference: Even in the absence of a legal duty, … the spoliation of evidence [may] result in an adverse inference against the party that discarded or destroyed the evidence. … Florida courts

may impose sanctions, including striking pleadings, against a party that intentionally lost, misplaced, or destroyed evidence, and a jury could infer under such circumstances that the evidence would have contained indications of liability. If the evidence was negligently destroyed, a rebuttable presumption of liability may arise. … [A]n adverse inference may arise . . . where potentially self-damaging evidence is in the possession of a party and that party either loses or destroys the evidence. League of Women Voters of Fla. v. Detzner, 172 So. 3d 363, 391 (Fla. 2015) (internal citations and quotations omitted). Unlike in Detzner, a hospital has a clear legal duty, under a host of statutes and rules, to separately preserve and maintain information on adverse medical incidents. See Charles, 2017 WL 411333, at *3, 8. A provider’s breach of this duty may make it practically impossible for a patient-plaintiff to obtain the non-privileged evidence. For example, if a provider intermingles non-privileged, state-mandated information on adverse medical incidents with privileged information in a patient safety evaluation system, then it may be too costly and burdensome for the patient to extract the non-privileged information from the patient safety evaluation system. If so, the provider should be sanctioned with an appropriate remedy for spoliation of evidence. Costs of production One tactic that providers are sure to employ in response to a broad Amendment 7 request is to charge an exorbitant amount for the costs of production. Though not discussed in the Charles opinion, the hospital there demanded that the patient pre-pay between $143,000 and $326,000 for the research costs to separate the state-mandated information from the privileged information, all of which was intermixed in the hospital’s privileged patient safety evaluation system. (Appellant’s Br. 18-20, 24.) How can a patient’s attorney fight these exorbitant costs? Of course, one option is to limit your requests and not ask for all Amendment 7 records. Ask only for those records that pertain to your patient’s particular incident. Or, ask for those records that pertain to similar adverse incidents. The risk of limiting your request is that the provider will narrowly construe your request and not produce records that may help your case. Another option is to turn back to the plain language of the Florida Constitution, specifically Amendment 7. To collect costs from patients, providers rely on a statute, Section 381.028(7)(c)1, Florida Statutes (2016),3 which authorizes a provider to charge “reasonable” research and copying costs, and to demand payment of this charge in full and in advance. This statute, of course, is part of the “general law.”4 Amendment 7, however, provides for a separate, constitutional method to access the records. In other words, Amendment 7 establishes a method of accessing the record that does not require a statute or general law. Specifically, it states:

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The phrase “have access to any records” means, in addition to any other procedure for producing such records provided by general law, making the records available for inspection and copying upon formal or informal request by the patient or a representative of the patient, provided that current records which have been made publicly available by publication or on the Internet may be “provided” by reference to the location at which the records are publicly available. Art. X, §25(c)(4), Fla. Const. (emphasis added). The italicized language suggests that the Legislature, by general law, may fashion a statutory method for providing access to Amendment 7 records. But that general-law method does not negate the constitutional method, which is underlined and bolded above. The constitutional method gives a provider two options. First, as the bolded language indicates, the provider may make the records publicly available on the internet and be absolved of any further responsibility for producing the records. Second, as the underlined language indicates, the provider may make the records available to the patient who then, in turn, may inspect and copy the records. I am unaware of any provider in the state who complies with the first constitutional option of publishing the records on the internet. That means a provider must comply with the second constitutional option: making the records available for inspection and copying. In other words, providers may not charge patients for records under Amendment 7’s plain language; that self-executing language imposed a duty on providers to publish on the internet or allow review for inspection and copying. Under the second option, a patient’s attorney with a scanner can obtain the records at a far lower cost than what providers attempt to charge under section 381.028(7)(c)1. Of course, in making the records available for inspection and copying, providers also must comply with federal privacy laws. See Art. X, §25(b), Fla. Const. Providers can comply with these privacy laws by following Florida Rule of Administration 59A-3.270(1), which requires providers to keep records in a searchable format that allows confidential portions to be manipulated and protected. The constitutional argument for overcoming a provider’s effort to charge a patient hundreds of thousands of dollars was presented to, and rejected by, the trial court in Charles. Unfortunately, the issue could not be raised in the appellate courts, and thus was not decided by the Supreme Court. Conclusion In Charles, the Supreme Court of Florida resurrected Amendment 7 as a viable discovery tool for patients. The court rejected the First District’s conclusion that a federal act, the PSQIA, preempted Amendment 7.

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In the nearly thirteen years since Amendment 7 was overwhelmingly approved by Florida voters, the amendment’s opponents have persistently tried to kill it. Continued protection of the constitutional rights of Florida patients to access adverse medical incidents will require smart strategies by patients’ lawyers. ___________ First, the Legislature passed statutes to limit Amendment 7’s impact; the Supreme Court of Florida in Buster invalidated most of those statutes. See generally id. at 484-94. Next, Amendment 7’s opponents argued that records of adverse medical incidents: should not be produced unless they were relevant; would be too burdensome to produce; and were protected by a privilege or the work product doctrine. The courts uniformly rejected these arguments as being irreconcilable with Amendment 7. See generally id. at 491; Morton Plant Hosp. Ass’n., Inc. v. Shahbas, 960 So.2d 820 (Fla. 2d DCA 2007); Lakeland Reg’l Med. Ctr. v. Neely, 8 So.3d 1268 (Fla. 2d DCA 2009); Fla. Eye Clinic v. Gmach, 14 So.3d 1044 (Fla. 5th DCA 2009); Columbia Hosp. Corp. of S. Broward v. Fain, 16 So. 3d 236 (Fla. 4th DCA 2009); Baldwin v. Shands Teaching Hosp. and Clinics, Inc., 45 So.3d 119 (Fla. 1st DCA 2010). Then, Amendment 7’s opponents raised a federal preemption argument based on the Health Care Quality Improvement Act; that effort failed. See W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So.3d 1, 15 (Fla. 2012). 2 Two justices (Justices Canady and Polston) did dissent, but they did so for reasons unrelated to the preemption issue. On the eve of oral argument, the Charles family and the hospital settled the case. See Charles, 2017 WL 411333, at *1 n.2. Accordingly, the two dissents opined the case should have been dismissed. Id. at *13-14 (Canady, J. dissenting). 3 This statute was upheld by the Supreme Court of Florida as a constitutional implementation of Amendment 7. Fla. Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478, 493 (Fla. 2008) 4 “A ‘general law’ operates universally throughout the state, uniformly upon subjects as they may exist throughout the state, or uniformly within a permissible classification.” E.g., Vill. of Wellington v. Palm Beach County, 941 So.2d 595, 599 (Fla. 4th DCA 2006). 1

Bryan Gowdy

Mr. Gowdy is a Florida Bar board-certified appellate lawyer. His practice includes appeals, post-conviction motions, and trial support for matters likely to be appealed. His practice encompasses all substantive areas of the law, including plaintiff’s injury, toxic torts, products liability, class actions, medical malpractice, commercial matters, constitutional law, criminal law, and family law. He has briefed and orally argued appeals before the U.S. Supreme Court, the U.S. Court of Appeals for the Eleventh Circuit, the Supreme Court of Florida, and all of Florida’s district courts of appeal. He is AVrated by Martindale Hubbell and has been selected as a Florida Super Lawyer and a Legal Elite by Florida Trend Magazine.

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CO-COUNSEL FEES PAID IN ACCORDANCE WITH FLORIDA BAR RULES. The Law Offices of Craig Goldenfarb, P.A. http://www.800GOLDLAW.com 1800 S Australian Ave Ste 400 West Palm Beach, FL 33409 www.FloridaJusticeAssociation.org | March/April 2017 | 53

FJAYOUNGLAWYERSSECTION

A SPECIAL KIND OF “BAD”: The Tort of Intentional Infliction of Emotional Distress in the Claims-Handling Context By Fay O. Pappas (Bailey Fisher, PLLC) & Jeffrey M. Liggio (Liggio Law); with additional input from Michael K. Bailey (Bailey Fisher, PLLC) & Olivia Liggio (Liggio Law)

lorida courts have long held a person can claim damages under the tort of Intentional Infliction of Emotional Distress (hereinafter “IIED”) as a result of a wide range of unfortunate (and bizarre) events including, but not limited to the following: getting arrested for complaining about an undercooked lobster dinner1; discovering the police ran that prostitution ring in your bottle club2; fleeing a hospital in only a surgical gown3; appearing in an unflattering light in your school newsletter4; being kicked out of a cemetery5; and getting bit by your friend’s pet skunk6. But 1) how do Florida Courts assess IIED claims when they are brought not by the skunk-bitten, but instead by a beneficiary against her own insurance company? And 2) what does IIED in the claims-handing context even look like? This article will answer both questions and conclude with the Florida test for the evaluation of IIED claims in the claims-handling context. The Tort of Intentional Infliction of Emotional Distress: Some Basics The Second Restatement of Torts, §46(1) provides the general standard to determine whether: One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm (emphasis added).7

Comment (d) to §46(1) states that what generally constitutes “extreme and outrageous conduct” is conduct that might compel a reasonable 54 | March/April 2017 | www.FloridaJusticeAssociation.org

person to exclaim, “Outrageous!” upon learning of it.8 Comment (e) adds that “Outrageous!” conduct may arise when one party takes advantage of their position of unequal power to affect the well-being of another.9 Furthermore, in Comment (f ) the drafters note that “Outrageous!” conduct also arises when an actor proceeds in the face of knowing the other party is susceptible to emotional distress by reason of some physical or mental condition.10 Thus, “proceeding in the face of knowledge” converts a deleterious, but otherwise innocent act into one that is “heartless, flagrant, and outrageous.”11 According to Comment (g), the Second Restatement of Torts, §46(1) recognizes a limited “privilege” to act in a manner that would otherwise be considered extreme and outrageous, if doing so would result in emotional distress. However, this applies only in a very narrow context. In fact, Comment (g) provides only one example where such privilege may arise: A and her children are destitute, ill, and unable to pay their rent. B, their landlord, calls on A and threatens to evict her if the rent is not paid. Although B’s conduct is heartless, he has done no more than what the law permits him to do, and he is not liable to A for her emotional distress.12 As stated in the example, “B” is the landlord of tenant, “A.” “A” has a contractual agreement with “B” that requires her to pay “B” rent in exchange for living in “B”’s home. By inference, the hypothetical

contract also states that should tenant “A” stop paying rent, her act by omission would constitute a contractual breach actionable by eviction. “A” then breaches her contract with “B” by failing to pay her rent because of poverty and illness. “B” attempts to collect the rent money owed to him by advising “A” that her breach of the contract permits him to evict her and her family. Regardless of why “A” breached the contract, the fact still remains that she did. Essentially, the drafters conclude that a party bears responsibility for any emotional distress that befalls her, if and only if she fails to live up to her legally enforceable duties. IIED in the Context of Claims-Handling Practices More than twenty years of Florida case law have defined when and how otherwise routine claims handling decision-making and practices cross the line into “Outrageous!” conduct for which a wronged beneficiary is entitled to bring a claim for IIED. In Dominguez v. Equitable Life Assurance Soc., the Third District Court of Appeals reversed the lower court’s dismissal of Plaintiff’s complaint for IIED.13 The Dominguez court held the complaint sufficiently alleged extreme and outrageous conduct by finding that defendant’s claims handlers abused their position of power by terminating the plaintiff’s disability payments without justification, and that they proceeded to do so in the face of knowing about plaintiff’s disabilities, “and thus his susceptibility to emotional distress when they acted.”14 Dominguez brought into sharp focus Florida courts’ growing recognition of an unsettling truth; namely, that the unique context of claims-handling could produce “Outrageous!” outcomes for society, if claims handlers were permitted unfettered discretion in their decision-making and practices.15 Then in 1985 the Florida Supreme Court officially recognized a distinct claim for IIED, formally adopting the IIED standard in the Second Restatement of Torts, § 46.16 Metropolitan Life Insurance Company (hereinafter “Metropolitan”) had appealed a jury verdict award for IIED, claiming first that their claims-handling practices were not “Outrageous!” and second, regardless of the outcome of their actions, Metropolitan’s conduct was squarely within the realm of “privileged” conduct set forth in Comment (g) of the Second Restatement of Torts § 46.17 Mr. and Mrs. McCarson had entered into a contract with Metropolitan, which required them to provide proof of Medicare ineligibility upon request, or face termination of benefits.18 But it was while Mrs. McCarson was receiving round-the-clock care at a nursing home facility that Metropolitan requested proof of Medicare ineligibility, or it would terminate coverage for her care.19 The McCarsons failed to provide proof of Medicare ineligibility.20 In response, Metropolitan cut Mrs. McCarson’s benefits, forcing her husband to remove her from nursing care, which they could no longer afford.21 A jury concluded the heart attack that killed Mrs. McCarson arose out of emotional and physical distress brought on by the loss of

nursing home care.22 Nevertheless, the Florida Supreme Court held that the decision-making practices of Metropolitan’s claims handlers fell squarely within the very narrow context described in Example 14 of Comment (g). In other words, but for the fact that the McCarsons had failed to live up to their obligation (to provide proof of Medicare ineligibility) under the contract, the court would have affirmed the jury’s finding of “Outrageous!” conduct; conduct which arose from claims handlers’ 1) abuse of their position of unequal power when they chose to terminate a beneficiary’s medically necessary benefits, and 2) their concomitant decision to proceed with termination in the face of knowing of the party’s susceptibility to emotional distress by reason of her fragile physical condition.23 Two years after Metropolitan, the Fifth District Court of Appeals affirmed a judgment for IIED, finding claims handlers’ “Outrageous!” conduct was not immune from liability for IIED under the very narrow context of Comment (g) “privilege.”24 In Dependable Life Ins. Co. v. Harris, a claims handler determined the insurance policy gave her the power to terminate Mr. Harris’ benefits under a plan exclusion for “pre-existing conditions,” although evidence put forth at trial revealed the claims handler had ample evidence that Mr. Harris’ condition was not pre-existing at all.25 The court ruled the totality of the claim handlers’ actions amounted to “Outrageous!” conduct, arising out of 1) the abuse of her position of unequal power, and 2) proceeding with termination of benefits and repeatedly refusing to reinstate benefits in the face of knowing the party’s susceptibility to emotional distress by reason of his fragile physical condition. The court also concluded that 3) the facts did not fit within the very narrow context of “privilege” outlined in Comment (g), and as applied in Metropolitan.26 In 1989, the Fourth District Court of Appeals added further insight into the kind of claims-handling practices that crossed the line from routine into actionable claims for IIED, not barred by the very narrow “privilege” exception.27 In Blue Cross/Blue Shield v. Weiner, the court affirmed judgment for IIED against Maryland Blue Cross/Blue Shield (hereinafter “Maryland”). Unlike its co-defendant, Florida Blue Cross/ Blue Shield, the jury had determined Maryland possessed authority to make independent coverage decisions, which they wielded in a manner that interfered with a beneficiary’s medically necessary treatment. 28 Thus, the court did not disturb the jury’s judgment that Maryland’s conduct was legally “Outrageous!” and indefensible by any arguable “privilege.”29 In 1996, the same appeals court that had decided Weiner also determined that conduct, which could be found “Outrageous!” in the context of claims-handling decision-making and practices, is not necessarily actionable in scenarios outside of this context.30 In Paul v. Humana Medical Plan, the court affirmed dismissal of plaintiffs’ complaint with prejudice for IIED only as to the individual physician, Dr. Karsh.31 The plaintiffs’ claim for IIED against their physician hinged upon the fact that Dr. Karsh gave Mr. Paul discharge instructions to clean his wife’s wound at home to prevent infection, even though Mr. Paul had previously advised Dr. Karsh he was incapable of performing that duty without emotional distress.32 The court determined that Dr. Karsh had not abused his unequal position of power by including in Mrs. www.FloridaJusticeAssociation.org | March/April 2017 | 55

FJAYOUNGLAWYERSSECTION Paul’s discharge papers instructions that her husband keep his wife’s open wound clean and free of infection while at home.33 Ultimately, Dr. Karsh was Mrs. Paul’s treating physician.34 Thus, Dr. Karsh’s decision-making as to what constituted “medically necessary” treatment did not meet the standard for IIED. Instead, the court advised that an action for medical malpractice was the appropriate avenue by which the Pauls could challenge the efficacy of an individual physician’s rendering of medical treatment.35 In the years since, subsequent rulings have enriched our understanding of the conditions under which extreme and outrageous conduct arises in the claims-handling context. Significantly, in 2001, the court in Greene v. Well Care HMO, Inc., determined that Well Care claims handlers placed their own judgment of what constitutes “medically necessary” treatment above that of the plaintiff’s own physicians when they initially denied and repeatedly refused to authorize coverage for a medically necessary procedure. (See discussion in endnotes)36 Conclusion: Here’s How Florida Courts Decide IIED in the Claims-Handling Context Today The modern test employed by Florida courts to determine as a matter of law whether or not claims-handling decision-making and practices could conceivably rise to the level of an actionable IIED claim under any set of facts can be summarized as follows: 1. Claims handlers abuse their unequal position of power when they interpret contractual provisions to grant them the unqualified authority to determine what treatment is “medically necessary” in conflict with the judgment of a beneficiary’s own physicians, subsequently denying or terminating coverage for that treatment; 2. Claims handlers proceed to conduct themselves in such a way in the face of knowing of their beneficiary’s particular susceptibility to emotional distress by reason of some physical or mental condition; and 3. Claims handlers’ conduct is not a “privileged” or legally permissible response to the beneficiary’s failure to live up to her obligations under their contract in a way that is factually analogous to the very narrow context laid out in Comment (g) to the Second Restatement of Torts, §46. _____________ 1 Lashley v. Bowman, 561 So. 2d 406, 407 (Fla. 5th DCA 1990) (Plaintiff sued a restaurant for IIED when the manager responded to her observation that the lobster she had been served was half-cooked by calling the police, who then arrested her for refusing to pay for her inedible meal. The appeals court reversed summary judgment by finding that the jury could believe that the intent of the manager’s actions was to cause his customer emotional distress sufficient to induce her to pay money she did not owe, thereby finding his conduct was sufficiently outrageous to warrant recovery for IIED) 2 Gallogly v. Rodriguez, 970 So. 2d 470, 471 (Fla. 2d DCA 2007) (The appeals court reversed the lower court’s dismissal with prejudice of plaintiff’s IIED suit; a law suit filed after defendant police officers conducted a campaign of harassment by running a drug and prostitution right out of plaintiff’s bottle club. The court found that the facts alleged in the complaint, if true, were sufficient to indicate “Outrageous!” conduct, arising out of the police officer’s abuse of 56 | March/April 2017 | www.FloridaJusticeAssociation.org

their unequal position of power to the bottle club owner.) 3 McAlpin v. Sokolay, 596 So. 2d 1266, 1267 (Fla. 5th DCA 1992) (Plaintiff sued a physician for IIED when the physician brought up an unpaid bill during an examination and threatened to call the police, resulting in plaintiff fleeing the procedure room while dressed in nothing but a surgical gown. The court reversed the order that dismissed plaintiff’s claim for IIED, finding as a matter of law that the facts pleaded demonstrated conduct that was so outrageous that the average member of the community would find it atrocious and intolerable.) 4 Nims v. Harrison, 768 So. 2d 1198, 1199 (Fla. 1st DCA 2000) (Plaintiff, a teacher, filed suit for IIED after several students distributed around their school an unflattering newsletter about him. The appeals court reversed a lower court order dismissing plaintiff’s complaint with prejudice, by finding the alleged conduct was sufficiently “Outrageous!” to state a cause of action for IIED.) 5 Mallock v. S. Mem’l Park, Inc., 561 So. 2d 330, 331 (Fla. 3d DCA 1990) (reversing a lower court’s order of summary judgment, as the plaintiffs had set forth a sufficient claim for IIED where defendant’s act of ejecting them from the cemetery was done without regard to the high degree of probability that emotional distress would result.) 6 Kirkpatrick v. Zitz, 401 So. 2d 850, 851 (Fla. 1st DCA 1981) (The appeals court reversed the lower court’s dismissal with prejudice of the plaintiff’s IIED claim; a claim which arose after defendant’s skunk bit her. The court determined that the facts alleged in the complaint, if true, indicated that the insurance company instructed that plaintiff not be told that the guilty skunk disappeared before it could be tested for deadly diseases, and thereby finding that such conduct intolerably disregarded human life.) 7 Restat. 2d of Torts, §46. 8 See Id. 9 See Id. 10 See Id. 11 See Id. 12 See Id. at Ex 14. 13 438 So. 2d 58 (Fla. 3d DCA 1983) 14 Id. at 62, citing Comments (d), (e), and (f ) of the Second Restatement of Torts, §46. 15 See Id. at 62 (“This combination of the unjustified assertion of power by one party, and impotence of the other, would, we think, be viewed by a civilized community as outrageous and not as an indignity, annoyance or petty oppression for which the law affords no relief. Our conclusion that the conduct alleged is outrageous is amply supported by case law.”); see also Holmes v. Oxford Chemicals, Inc., 510 F. Supp. 915 (M.D.Ala.1981) (“Plaintiff argued persuasively that for defendant to [terminate the benefits of ] a man whom it knew had a severe heart condition and was already distraught over his physical and financial condition was outrageous. Predictably, plaintiff suffered severe depression and required psychiatric treatment for his helpless financial condition imposed by defendant’s deliberate and wrongful act of denying him the monthly income to which he was admittedly entitled.”); Strader v. Union Hall, Inc., 486 F. Supp. 159 (N.D.Ill.1980) (“As a result of the termination of payments by Travelers, plaintiff allegedly was unable to obtain physical therapy for more than a year and one half. During this period his mental—as well as physical—condition allegedly deteriorated seriously. Because he had lost hope for the future, his mental state became one diagnosed as moderately severe depression.”).

See Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277 (Fla. 1985). See Id. 18 See Id. 19 See Id. 20 See Id. 21 See Id. 22 See Id. 23 See Id; see also Comments (d) (e) (f ) to the Second Restatement of Torts, §46. 24 See Dependable Life Ins. Co. v. Harris, 510 So.2d 985, 986-87 (Fla. 5th DCA 1987). 25 See Id. 26 Id. 27 See Blue Cross/Blue Shield v. Weiner, 543 So.2d 794, 798-99 (Fla. 4th DCA 1989) 28 See Id. 29 See Id. 30 See generally Paul v. Humana Medical Plan, 682 So.2d 1119 31 See Id. 32 See Id. 33 See Id. 34 See Id. 35 See Id. 36 778 So.2d 1037 (Fla. 4th DCA 2001) (In finding that plaintiffs should be afforded the opportunity to amend their complaint to state a cause of action for IIED, the court held that it was “clear [. . .] that Well Care must authorize treatment in advance. It is Well 16 17

Care’s decision, not that of the physician, as to what medical services are medically necessary for the patient”) (emphasis added); see also Lane v. Health Options, Inc., 796 So.2d 1234 (Fla. 4th DCA 2001) (affirming dismissal of a complaint where p.laintiff alleged that claims handlers’ conduct amounted to medical malpractice, and granting Plaintiff leave to amend the complaint to allege a claim for IIED instead); Solomon v. Well Care HMO, Inc., 822 So.2d 543 (Fla. 4th DCA 2002) (reversing dismissal of a complaint for IIED, and rejecting defendant HMO’s argument that its claims handlers’ denial of plaintiff’s medically necessary treatment was medical malpractice, which plaintiff had not pled); Aguilera v. Inservices, Inc., 905 So.2d 84 (Fla. 2005) (extending the §46(1) Restatement Second of Torts analysis to the worker’s compensation context in concluding an employer abused its position of unequal power by terminating benefits, which effectively ended the employee’s access to medically necessary treatment, and proceeded in doing so in the face of knowing of the employee’s particular susceptibility to emotional distress by reason of his fragile physical condition). Fay O. Pappas is an associate attorney at Bailey Fisher, PLLC, whose practice concentrates on medical malpractice, wrongful death, birth injuries, serious auto and trucking collisions, and slip and fall. Ms. Pappas is also an active member of the FJA Young Lawyers Section Board. She currently serves on the Executive Board of the FJA Women’s Caucus.

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An attorney should not discuss non-recourse advance funding with a client unless it is done in compliance with Florida Bar Ethics Opinion 00-3. The Florida Bar discourages the use of non-recourse advance funding companies.An attorney may provide a client with information about companies that offer non-recourse advance funding if it is in the client’s interest and done in compliance with Florida Bar Ethics Opinion 00-3. The individual lawyer is responsible for ensuring that his or her conduct is in compliance with the Rules Regulating The Florida Bar and comports with Florida Ethics Opinion 00-03. The Florida Justice Association recommends that attorneys who do provide names of non-recourse advance funding companies to clients should provide only names of companies that are in conformity with the guidelines contained in the agreement between the New York Attorney General and certain companies dated Feb. 17, 2005. The Florida Justice Association makes no determination or representation as to whether any particular non-recourse advance funding company is in conformity with Florida Bar rules or opinions, or any other guidelines.

www.FloridaJusticeAssociation.org | March/April 2017 | 57

MEMBEROUTREACH

FJA LEADERS

TRAVEL THE STATE TO SHARE THE 2017 CIVIL JUSTICE LEGISLATIVE AGENDA

he action in the legislative process doesn’t just take place in Tallahassee! Every year before session, FJA leaders share our legislative agenda with members in regions throughout the state. FJA’s Membership Appreciation Receptions (“MARs”) feature delicious food and refreshing drinks, and the good company of other FJA members from the region. This is all made possible by our gracious members and business partners.

We deeply appreciate the FJA members who take valuable time to join us for these event and invite you to come to the next MARs meeting in your area. 2 1. Palm Beach MARs (left-right): Paul Jess, Eric Romano, Leslie Kroeger, Laurie Briggs, Mark Clark, Greg Barnhart, Jimmy Gustafson, Chris Searcy, Richard Slawson, John Romano, Fred Cunningham, and Trey Lytal 2. Broward MARs (left-right): Tony Quackenbush, Senator Gary Farmer, Paul Jess, Diana Santa Maria, Beth Finizio, Ed Zebersky, and Steve Jaffe 3. Miami-Dade MARs (left-right): Robert Rubenstein, Jimmy Gustafson, Rob Paulk, Paul Jess, Richard Chait, and Bruce Braxton

WE’RE SOCIAL! Keep in touch and up-to-date with all of our latest news, events and campaigns. twitter.com/floridajustice @florida_justice facebook.com/floridajusticeassociation

And if you enjoy the regular and relevant updates on our responses to policies and legislation, information on our work, events and more. we welcome you to offer your comments, questions and thoughtful ideas into the conversation. Engage with us today on Facebook, Instagram and Twitter!

58 | March/April 2017 | www.FloridaJusticeAssociation.org

FJA MEMBERS

FROM ACROSS FLORIDA TURN OUT FOR LOBBY DAYS

ach year, the Florida Legislature reviews, moves and ultimately passes legislation that impacts your law practice. While the FJA legislative team works year-round to protect the interests of your clients and your firm, all FJA members have the opportunity to join our volunteer lobbying efforts during session. FJA members have unique and compelling stories from their clients that illustrate to legislators how the bills they consider make a real impact on the lives of Floridians. It’s important that we have civil justice advocates like you in Tallahassee throughout session to share these enlightening stories with legislators.

1. FJA President Jimmy Gustafson presents a welcome and legislative briefing to the members of the FJA Young Lawyers Section. 2. Women’s Caucus members lobbying in a legislator’s office (left-right): Mallory Widgren, Brenda Fulmer, and Adriana Gonzalez 3. FJA Young Lawyers with FJA PastPresident Senator Gary Farmer (leftright): Jon GIlbert, Cassidy Perdue, Michael Kalil, Senator Gary Farmer, Amanda Dunn, Heather Freeman Jones, and G.C. Murray 4. Women’s Caucus members with Representative Erin Grall (left-right): Mallory Widgren, Kerri Smith, Brittany Henderson, Representative Erin Grall, Beth Finizio, and Brenda Fulmer

www.FloridaJusticeAssociation.org | March/April 2017 | 59

“

MEMBEROUTREACH

“

Coming up to Tallahassee for Women’s Caucus Lobby Days was incredible! I participated in the FJA’s legislative strategy lunch with leaders of the organization, I met with many female legislators who were very interested in learning more about the bills that we support, and I was able to attend a committee meeting featuring a debate on autonomous vehicles. The more-experienced attorneys took me in and showed me the ropes, and the FJA staff was so welcoming. This was an incredible opportunity to connect with inspiring female attorneys from other parts of the state, and to do my part to represent my clients in the legislative process. I will definitely be back in Tallahassee soon. Brittany Henderson Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L.

The first few weeks of session included member lobby days for the Women’s Caucus, Young Lawyers Section and Tampa Bay. FJA members advocated for their clients’ rights and had some fun along the way! Thank you to the FJA members who joined us.

FJA YOUNG LAWYERS

HOST OUTREACH LUNCHEON AT FLORIDA STATE UNIVERSITY COLLEGE OF LAW The FJA Young Lawyers Board of Directors hosted a roundtable luncheon at the Florida State University College of Law to give law students the opportunity to Eat, Learn & Network with FJA young lawyer members from around the state. The program featured topics geared towards preparing law students for their careers after graduation; such as practical tips for preparing to take or defend a deposition, perspective on working at a plaintiff’s law firm, what to expect in your first few years of practice, and more. The FJA Law School Outreach program allows students to gain valuable insight and first-hand experiences from our members, who equip them with the information they need to succeed in their careers. Preparing the next generation of lawyers is the first step in strengthening our mission: to strengthen and uphold Florida’s civil justice system, and to protect the rights of Florida’s citizens and consumers. 60 | March/April 2017 | www.FloridaJusticeAssociation.org

1. FSU Law alumni and FJA Young Lawyer Board member, Ben Whitman was instrumental in the planning and coordination of the outreach luncheon. Here he is speaking to law students on tips for your first deposition. 2. Dan Vazquez and Amanda Dunn at a table of law students during the round table discussion.

KELLEY UUSTAL FIRM AWARDS FJA RESEARCH & EDUCATION FOUNDATION CY PRES AWARD

e give sincere appreciation to Kelley Uustal, PLC, and Liggio Law, P.A. for graciously selecting the Florida Justice Association Research & Education Foundation (“REF”) as the recipient of their cy pres award. The class action lawsuit against an electronic check recovery company and bank awarded plaintiffs 100% of their losses as a result of the settlement. The FJA REF was one of three charities to receive funds that remained from the checks not cashed by the class members in the case. The other charities to receive funds were the Broward County Legal Aid and Palm Beach County Legal Aid Society. We applaud the Kelley Uustal firm for their commitment to the mission of preserving civil justice through their cy pres recommendation. We thank these FJA members for their generous consideration and commitment to preserving the civil justice system. (Left-right) John Uustal, Jordon Lewis, Bob Kelley, Rob Paulk, Jeff Liggio, Kristin Bianculli, and Michael Hersh.

FJA PROVIDES A HOST OF NETWORKING OPPORTUNITIES TO HELP YOU MAKE THE MOST OF YOUR MEMBERSHIP. As an FJA member, you have access to the legal expertise, knowledge and skills of Florida’s most experienced civil justice attorneys. Our Networking opportunities include Young Lawyers Section, Women’s Caucus Section, Board of Directors’ Meetings, Annual Convention, Masters of Justice, Member Appreciation Receptions and our Lessons From the Courtroom.

www.FloridaJusticeAssociation.org | March/April 2017 | 61

EAGLESPOTLIGHT

2016-2017 EAGLE Recruiting Champions SPONSOR - $3,000

Since May 1, 2016 Recruiter Name

Recruiting Value

James W. Gustafson, Jr. Robert Mayer Rubenstein Lake H. Lytal, III Fred A. Cunningham Tiffany M. Faddis Paul D. Jess Philip A. Gold Richard E. Chait Jason F. Lamoureux T. Michael McLeod Jason D. Weisser F. Catfish Abbott Jason Mulholland Nathan P. Carter Alexander Murphree Clem Scott R. Jeeves Jeffrey M. Liggio Dale M. Swope Todd E. Copeland Donald M. Hinkle Robert T. Joyce Olivia D. Liggio Ricardo M. Martinez-Cid Troy Rafferty Lillian J. Reyes-Joyce Philip M. Burlington Bruce R. Kaster

$45,000 $45,000 $30,000 $20,000 $18,500 $13,000 $11,500 $11,000 $10,000 $10,000 $9,000 $8,000 $8,000 $7,500 $6,500 $6,500 $6,000 $6,000 $5,250 $5,000 $5,000 $5,000 $5,000 $5,000 $5,000 $3,000 $3,000

# of Recruits 8 5 4 2 3 2 2 5 2 2 3 2 2 4 2 2 2 2 3 1 1 1 1 1 1 1 1

FOUNDER - $25,000

Lake H. Lytal, III

Lytal, Reiter, Smith, Ivey & Fronrath, LLP Upgraded

62 | March/April 2017 | www.FloridaJusticeAssociation.org

Recruiter Name

Recruiting Value

John S. Mills H. L. (Larry) Perry Keith A. Pierro Skip Pita Anthony Quackenbush Waylon Thompson David J. Zappitell Stephen Watrel Vanessa Brice Joseph V. Camerlengo, Jr. Mark W. Clark David Eltringham James W. Guarnieri, Jr. Celene Humphries Nicholas C. Johnson Damian B. Mallard Stephen A. Marino, Jr. Anthony T. Martino C. Richard Newsome Chad Mitchell Pilon Matthew Nichols Posgay Jason Kyle Whittemore Daniel G. Williams Michael J. Winer Glenn M. Klausman

$3,000 $3,000 $3,000 $3,000 $3,000 $3,000 $3,000 $1,800 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $750

# of Recruits 2 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 2 1 1 1 1 as of 4/18/2017

BENEFACTOR - $10,000

Stephen P. Hoskins

Hoskins, Turco, Lloyd & Lloyd Upgraded by Lake H. Lytal, III

Robert J. Mayes

Mayes Law Firm, P.A. Recruited by Tiffany M. Faddis

PATRON - $5,000

Lillian J. Reyes-Joyce

Joyce and Reyes Law Firm Recruited by Robert T. Joyce

Robert T. Joyce

Joyce and Reyes Law Firm Recruited by Lillian J. Reyes-Joyce

Paul M. Doolittle

Paul M. Doolittle, P.A. Upgraded by Richard E. Chait

Gary W. Roberts Paul M. Doolittle, P.A. Upgraded by Richard E. Chait

GET CONNECTED GAIN INSTANT ACCESS TO FJA’S STATEWIDE NETWORK

FJA offers members a number of email discussion groups such as Young Lawyers, Women’s Caucus, Medical Malpractice, Property Insurance, TLEL, Paralegal, Trucking and others as a way to connect with members. These groups give participants instant access to a network of FJA members all at the tips of their fingers. It’s as simple as sending an email message. Responses to questions are usually received within minutes, assisting participants with their case.

GET ENGAGED TODAY!

www.FloridaJusticeAssociation.org | March/April 2017 | 63

EAGLESPOTLIGHT

SPONSOR - $3,000

Howard Gardner Butler

Jonathan R. Mayes

Butler Law Group Recruited by Dale M. Swope

Mayes Law Firm, P.A. Recruited by Tiffany M. Faddis

Richard H. Gaunt

Robert Frank Melton, II

Walborsky & Bradley Recruited by Waylon Thompson

Philip Dixon Parrish

Philip D. Parrish, P.A. Recruited by Philip M. Burlington

Newsome Melton Upgraded by C. Richard Newsome

ASSOCIATE - $1,500 Adam D. Breit Justice Law

Kamila Losey Brannan

Morgan & Morgan Recruited by Damian B. Mallard

Matthew Carrillo

Carrillo & Carrillo Recruited by Richard E. Chait

Maxwell Christiansen

Taylor Hoskins

Lytal, Reiter, Smith, Ivey & Fronrath, LLP Recruited by Lake H. Lytal, III

Hoskins, Turco, Lloyd & Lloyd Recruited by Lake H. Lytal, III

Louis Christopher DeBari

Thomas Joseph Jerla, Jr.

The Law Offices of Christopher DeBari, LLC Recruited by James W. Guarnieri, Jr.

Eltringham Law Group Recruited by David Eltringham

Rosemary B. Eure

Richard W. Osborne

Lancaster & Eure, P.A

BFE PATRON - $5,000

Upgraded

64 | March/April 2017 | www.FloridaJusticeAssociation.org

Osborne & Sharpless Recruited by James W. Guarnieri, Jr.

CLE CLE

CLE CALENDAR FEATURED EVENTS

2017 MONTHLY HIGHLIGHTS

OCTOBER-2016 APRIL

4/4, 6, 11, 13, 18, 20, 25 & 26 Boot Camp Webinar Series

BOOTCAMP

WEBINAR SERIES DATES: 4/4, 6, 11, 13, 18, 20, 25 & 26 Missed a webinar date or topic? No worries! Go to the FJA website to purchase the full bootcamp #2 series

SEPTEMBER 9/15 Case Law Insider Call

4/28 Collateral Sources Webinar

OCTOBER MAY 5/12 Trucking Webinar 5/18-21 Trojan Horse Method Seminar, Orlando

10/4-6 Masters of Justice, Ritz Carlton Sarasota

10/19 Proposals for Settlement Webinar

NOVEMBER JUNE 6/14-17 Annual Convention, The Don CeSar St. Pete Beach

ANNUAL CONVENTION JUNE 14-17, 2017 • THE DON CESAR ST. PETE BEACH

6/30 Closing Arguments Webinar

AUGUST 8/2-4 NEW: Voir Dire Institute, Gaylord Palms, Orlando 8/3-5 Al J. Cone Trial Advocacy Institute Gaylord Palms, Orlando 8/25 Trucking Webinar

MASTERS OF JUSTICE OCTOBER 4-6, 2017 • RITZ CARLTON, SARASOTA

11/17 Trucking Webinar 11/30 NEW: Learn from the Legends Seminar Wyndham Grand Orlando Resort Bonnet Creek DATES SUBJECT TO CHANGE: AS OF 4.11.2017

Index Arbitration assisted living facility, agreement signed by successor attorney-infact unenforceable for lack of authority…13 motor vehicle sales agreement with arbitration provision written in English signed by buyers who did not speak or write English, agreement enforceable against buyers…16 nursing home, health care proxy does not provide authority to bind the principal to arbitration…14 nursing homes, conflicting evidence as to whether resident authorized person to sign residency agreement for him…13 Argument, opponent’s right to assert or defend a claim, practice tips...46 Attorneys fees, legislative claims bills, claims bill restricting fee award to less than statutory 25% unconstitutionally impaired existing contract between law firm and client…12 fees, proposal for settlement with nonmonetary conditions, release would have required claimant to make untrue representation...20 fees, proposal for settlement, error to invalidate for minor deviation...44 fees, reservation of judgment, timely motion still required...20 Complaint, amendment, failure to allow plaintiff to amend where complaint named non-existent entity (estate rather than personal rep) as defendant...44 Constitutional Law, impairment of contracts...26 Damages, wrongful death, consortium damages not available to spouse who was not married at the time of decedent’s injury…17 Dangerous Instrumentality Doctrine, accident involving decedent’s car, vicarious liability of estate where personal representative not yet appointed…17 Dismissal, failure to prosecute, action previously properly stayed...44 Evidence expert witnesses, status, impact and practice tips re Supreme Court’s refusal to adopt statutory Daubert amendments as procedural rules...34 healthcare records, patient access to records of adverse medical incidents pursuant to Amendment 7 not preempted by federal law...48 legislative changes, Supreme Court declines to adopt legislative changes re Daubert standard for expert witnesses, medical malpractice same specialty requirement and hearsay…13 FJA 2017 Annual Convention, program of events...8 Insurance bad faith, federal courts are refusing to honor the right of the Florida Supreme Court to control substantive law...19 bad faith, where insurer failed to defend insured, it could not later intervene or raise defenses in related probate proceedings...22 homeowners, insurer did not waive right to rely on exclusions based by acknowledging coverage and making partial payment...22 insolvent insurer, no need to file new action against FIGA where first party suit filed before insurer became insolvent...23 insured’s compliance with post-loss obligations, evidence of insured’s health condition as factor in complying with obligations was potentially prejudicial...23 66 | March/April 2017 | www.FloridaJusticeAssociation.org

Insurance (Continued) PIP, insurer control re amount treating doctor can take from patient’s PIP benefit...19 PIP, no constitutional infirmity in disallowing chiropractors from diagnosing emergency medical conditions under PIP law…17 PIP, no constitutional infirmity in disallowing chiropractors from diagnosing “emergency medical conditions”...19 PIP, policy language sufficient to provide notice of insurer’s election to use Medicare fee schedule...22 PIP, scope of pre-litigation discovery limited...19, 23, 43 post-loss obligations, coverage voided by failure of insured to comply with contractual obligations...24 property damage, exclusion for damage to property being transported applied to motorcycle being towed on a trailer...20 UM, insurers are removing cases to federal court to take advantage of federal courts’ failure to follow Florida law...19 UM, no coverage for employee who was not in “covered auto” at time of crash...24 UM, question whether motorcycle included in definition of vehicle for purposes of policy exclusion...20 Legislative Claims Bill, attorney fee limitation...26 Malicious Prosecution, litigation privilege, claim based on adding a party defendant is not barred by privilege…13 Medical Malpractice alleged sexual assault of patient, presuit not required for count based on negligence…13 Amendment 7 not preempted by PSQIA...26 attorney fees...26 claims bill may not impair contract...26 evidence, prejudicial surprise...28 foreign body presumption of negligence...27 punitive damages, motion to amend to add...28 statutory foreign body presumption, application is mandatory when foreign body is found…12 Medical Records, “adverse medical incidents,” Amendment 7 access to records is not preempted by the privilege afforded under the Federal Patient Safety and Quality Improvement Act…12 New Trial, newly discovered evidence, lost, mishandled or forgotten evidence insufficient warrant new trial...43 Premises Liability open and obvious danger doctrine, property owner not relieved of duty to maintain property…17 slip and fall on transitory foreign substance, constructive knowledge of soup spilled on floor not established by fact that soup was “not hot” when plaintiff slipped on it…14 slip and fall on transitory foreign substance, insufficient evidence to establish constructive knowledge and no duty on part of cleaning service…16 Procedure, Fla.R.Civ.P. 1.530(b)(4), no distinction between void final “judgments” as specified in rule and orders or decrees...44 Products Liability, FDA-approved medical device, no “parallel” private cause of action under Florida law for violation of FDA requirements…16

Products Liability, Takata air bags, status and impact of plea deal with DOJ...30 Public Officials, absolute immunity’ actions taken within the scope of the official’s duties…13 Punitive Damages, pleading and proffer, amendment to add disallowed where proposed amended complaint not attached to motion and improper oral proffer of evidence...43 Restaurants, patron injured by swallowing mussel shell fragment, question of fact as to whether restaurant or patron was negligent precluded summary judgment…14

Statute of Limitations domesticated foreign judgments, 20-year period applies…13, 42 relation back, amendments asserting new claims can relate back to original pleading…12 Torts, intentional infliction of emotional distress, discussion of whether an insurer’s claims-handling decision-making conduct is actionable...54

LAWYER TO LEGACY ENDOWMENT PROGRAM In honor of Al Cone and our other Founders and to commemorate the Florida Justice Association’s 50th Anniversary, the FJA Board of Directors has launched our Lawyer to Legacy Campaign to begin the process of endowing EAGLE and the FJA REF. This is something we all can and should participate in if we believe in protecting the rights of the injured, defending the civil justice system, and training and educating lawyers in the art of advocacy. While monetary donations are always welcome, there are other ways of contributing that require little or no out-of-pocket expense. These include; 1. Planned gifts, including bequests, gifts of retirement assets or life insurance; 2. Outright or deferred gifts of life insurance, securities or real and tangible property. If you believe in protecting justice and the legal fabric of our society, make a difference that extends beyond your practice and survives beyond your life – become a Lawyer who leaves a Legacy! pjess@floridajusticeassociation.org

Paul Jess @ (850) 521-1026

FloridaJusticeAssociation.org

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Books Law and Disorder by Mike Papantonio........................................ 21

Call for Officer/Directors/Trustee Nominations The FJA Nominating Committee is seeking nominations for FJA Officer Positions of President-Elect, Treasurer and Secretary and 12 vacancies on the FJA Board of Directors. The committee will present a slate of nominees to the membership for consideration at the FJA General Membership Meeting at 1:15pm on Wednesday, June 14, 2017. The Annual General Membership Meeting is held in conjunction with the Florida Justice Associationâ&#x20AC;&#x2122;s Annual Convention, June 14-17, 2017, at The Don CeSar, St. Petersburg Beach. Nominations will also be accepted from the floor at that meeting. Elections for these FJA positions will take place on Thursday, June 15, 2017, from 3:30pm â&#x20AC;&#x201C; 5:00pm. If you are interested and would like further information about Officer and Board of Director positions, please contact Lee Phillips by May 5, 2017 at (850) 521-1033 or lphillips@floridajusticeassociation.org.

68 | March/April 2017 | www.FloridaJusticeAssociation.org

MEMBEROUTREACH

ADVERTISE WITH US OURNAL L A N R U JO JOUR NAL

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will be accepted only from FJA members in good 1] Ads standing.

Any ad submitted for publication must have been approved by The Florida Bar for print publication under Chapter 4-7, Rules Regulating The Florida Bar unless the ad is of a type that is exempt under the Rules.

Ads must not contain testimonials, must be in good taste and must not reflect unfavorably on the image of the Journal, FJA members or the legal profession. All ads will be subject to review by the FJA to ensure that they meet this standard, and all decisions by the FJA in this regard will be final.

may be a full page or a fraction thereof. Ads will not be 4] Ads accepted for the inside covers or back cover of the Journal. Ads will be accepted for publication on a “first-come, firstserved” basis, and the FJA reserves the right to determine placement and limit the total number of pages available for attorney advertising in each issue.

Diversity

In addition to the foregoing, ads will be subject to the same

5] rates, deadlines and other publication requirements that apply to other commercial advertising in the Journal.

AD RATES

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PRICING*

Full Page (EAGLE Member):..$600 Full Page (Member):................ $1,082

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(Pricing Subject to change in 2016* Rate based on one time placement)

FOR MORE INFORMATION

on advertising opportunities available through the FJA or to get details on specifications, ad dimensions, policies and insertion orders, please email John Brazzell at jbrazzell@floridajusticeassociation or call (850) 521-1020.

GET INVOLVED

The Florida Justice Association values the diverse knowledge and experience of its membership and seeks to harness those qualities to further the mission of the organization. Members can be a part of establishing FJA’s priorities and organizational policy direction by signing up to volunteer their expertise and time.

Here are some of the ways to get involved: • Planning of CLE Programs

• Join the Young Lawyers Section

• Join the EAGLE Program

• Make a Pledge to Support Political Candidates

• Join a Legislative Committee

• Join the Workers’ Compensation Section

• Come to Tallahassee to Lobby

• Become Active in FJ PAC’s Regional Task Forces

• Join the FJA Membership Committee

• Participate in the FJA Research & Education

• Be a Political Key Contact • Join the Technology Services Committee

Foundation Mock Trial • Join the Women’s Caucus Section

• Become Active in Our Political Program If you would like additional information about ways to engage in FJA opportunities that best suit your skills, availability, and expectations, sign up online at floridajusticeassociation.org/GetInvolved and view the total list and descriptions of multiple ways you can get involved today!

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For more information about Upchurch Watson White & Max, visit UWW-ADR.com or call (800) 863-1462.

JOURNAL Florida Justice Association 218 South Monroe Street Tallahassee, Florida 32301 (850) 224-9403 MARCH/APRIL 2017 ® FLORIDA FLORIDA JUSTICE Change Service Requested ASSOCIATION JUSTICE P A C

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JUSTICE PASS

We’ve made it easy for you to attend all of the events at the Annual Convention and Save Money. Register for the Justice Pass and Save up to $100 on your Registration! EAGLE Members and Young Lawyer Members save even more.

JUSTICE PASS INCLUDES:

YOUNG LAWYERS SEMINAR OR ADVANCED TRIAL SKILLS SEMINAR

ANNUAL REVIEW JUSTICE LUNCHEON ANNUAL DINNER PRESIDENTIAL LUNCHEON

FloridaJusticeAssociation.org

TO REGISTER FOR THE ANNUAL CONVENTION FloridaJusticeAssociation.org