FJA Journal - Nov/Dec 2017

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Florida Justice Association • November/December 2017 • #599 ®



May the Holidays and the New Year Bring You New Light SAVE THE DATE: Workhorse 2018 • March 20-23 Marriott’s Orlando World Center November_December_12_14_17.indd 1

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NOV./DEC. 2017–NO. 5992014 March March 2014



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Save the Date for the 2018 Workhorse Seminar — March 20-23, 2018

Upcoming 2018 Legislative Session provides great opportunities


Florida Supreme Court reaffirms the rules for contingency fee multipliers


The drug Abilify has a history of causing debilitating compulsive urges


Florida Supreme Court holds that external peer review reports conducted for hospitals are discoverable under Amendment 7


When it comes to the need for future medical expenses, how certain is “reasonably certain”?


The law regarding jury requests for testimony to be read back has changed radically


Practice tips for making and preserving a good record for your appeal.

IN THIS ISSUE Florida Supreme Court holds ex parte interviews with treating physicians violate rights to privacy and access to courts

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An urgent warning for every attorney with a Takata airbag client!

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President’s Message— Dale Swope Executive Director’s Message — Paul Jess Special Focus: 2018 Workhorse Seminar Cases and Commentaries — Kenneth D. Kranz Legislative Notes Tips for Auto Practitioners — Brent Steinberg Mass Torts — Christopher G. Paulos and Lexi J. Hazam Medical Malpractice — Scott R. McMillen and Allison McMillen Products Liability — C. Richard Newsome, R. Frank Melton, II and William C. Ourand Evidence - Tim O’Brien Civil Procedure — Roy D. Wasson Closing Arguments — Philip M. Burlington, Barbara Green and Christopher V. Carlyle 48 FJA Appellate Practice Section – Shea T. Moxen 52 FJA Young Lawyers Section – Elizabeth Munro 54 The Briefcase – Michael Goodman, Edward Zebersky & Michael Miller 59 CLE 60 Member Outreach 64 EAGLE 73 Index | November/December 2017 | 3

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EXECUTIVE COMMITTEE Laurie Briggs Nathan P. Carter Tiffany M. Faddis Christopher N. Ligori Todd J. Michaels

TREASURER Leslie Mitchell Kroeger SECRETARY Eric Romano IMMEDIATE PAST PRESIDENT James W. Gustafson, Jr

DIRECTORS 2017-2019 Hubert R. Brown Richard E. Chait Clifton C. Curry, Jr. Tiffany M. Faddis Jason F. Lamoureux Christopher N. Ligori Damian B. Mallard Todd J. Michaels Curry Pajcic Waylon Thompson Hendrik Uiterwyk Gregory M. Yaffa Mark Zamora

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 James L. Magazine Daniel A. Mowrey H. L. Larry Perry Matthew N. Posgay Daniel Vazquez Steve Watrel Jason Whittemore

members and ask your most pressing Paralegal List Server, contact the FJA Membership Department at (850) 521-1093.

WORKERS’ COMPENSATION SECTION Richard E. Chait YOUNG LAWYERS SECTION Heather Freeman Jones Christopher Keller

LOCAL TLA REPRESENTATIVES BCJA– Scott L. Henratty CCJA - TBD CFTLA - Glenn M. Klausman JJA – Daniel A. Iracki MTLA – Bernard F. Walsh MDJA – Shannon Del Prado PBCJA – Peter Hunt TBTLA – James W. Guarnieri, Jr. TCJA – Gloria Seidule AAJ OFFICER Julie Braman Kane AAJ BOARD OF GOVERNORS Sean C. Domnick Brenda Fulmer Rodney G. Gregory James R. Holland Adam Langino Ricardo Martinez-Cid Troy Rafferty Herman J. Russomanno Jean Marie Whalen Edward H. Zebersky AAJ STATE DELEGATES Jack Hickey Clancey Bounds Daryl D. Parks


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WOMEN’S CAUCUS Amber Hall Kerri C. Smith

Network with other FJA paralegal questions. To sign up for the

DIRECTORS AT LARGE Thomas W. Carey William T. Cotterall Matthew K. Foster Allison McMillen H.K. Skip Pita Anthony Quackenbush Brent G. Steinberg PRESIDENTIAL APPOINTMENTS Nathan P. Carter


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am writing this message way past my deadline. The whole Journal is being held up, waiting on me, so I’m not going to take time to convert my thoughts into beautiful prose – as if I ever have. There are, however some seriously cool things that I want you make sure you know.

1. We are going into session looking really, really good., Maybe better than I can ever remember it, and certainly better than any time in the past 20 years! Our flagship bill – to require mandatory auto bodily injury liability insurance, get rid of the permanency threshold and the ten thousand dollar offset for PIP payments has already made major progress. It had only one committee assignment to get to the floor of the House, and it already passed that. There are three committees in the Senate and the hearing on one of those will almost certainly have passed by the time you read this. A few years ago almost any fast moving priority bill was guaranteed to be a bad one, and now that it seems almost surrealistic to see one so favorable to the consumer being treated this way. It just has to be said again that this is not an accident or just good fortune. The arc of Florida politics bends long, and what we are seeing now is the direct result of wisdom, work, and wealth that was invested into the success of candidates who fundamentally believe in upholding the constitution and our rights to access the courts. If ANYthing comes good from this legislative session, it will be because of the sacrifice and commitment that members and staff of OUR ORGANIZATION have made over the past several years, so be very proud. We did that! 2.

It will include an expanded outreach to our law schools, to capture students there, and expanded, deeper relationships to the local trial lawyer associations to make them better recruiters for us. It will include contests for our members and our vendors who recruit for us, and big, earned discounts on products and services from the FJA and from our vendors. It will include a big robust multi-faceted mentorship program designed to guarantee that our new and young members get connected and stay connected, and that our more experienced members have an easy conduit to impart their wisdom to those who will follow. These programs will be specifically designed to help our women and minorities find their home here, and to increase the diversity of our whole organization to help it grow and be stronger. And it will soon help to simplify and rationalize our fundraising systems to get us better adapted for the realities of how politics runs now. AND YES, THERE’S MORE, but that will come in a formal rollout that we are working on now. Just now that we are all working hard to ensure that the FJA is gonna get better and better, and you are going to love being a member even more than you do now. 3.

Our fundraisers are busting it!! Give your local fundraiser a hug when you see them. Even better, give them a pledge, We have exceptionally ambitious goals that will support awesome programs and candidates, and our fundraising team (plus YOU of course) are making it possible. The cost of politics in Florida has climbed at 9 percent a year, compounded annually, for the past decade. We are keeping up, but we definitely need every single one of us to stay committed as deeply as we can.


John Romano – Just saying that name invokes everything good about being a trial lawyer. It makes you sit up straighter, talk more clearly, and remember that there is always a higher purpose in your work. Well, your Board thinks so too, and has renamed the iconic Workhorse Seminar after John. And why not??

It was his idea, he and his family of great lawyers (including your Secretary Eric) has worked, and nurtured and grown it into the single most amazing practical knowledge CLE in the universe.

Your Board has recently voted to begin implementation of the most comprehensive package of new member benefits we have ever imagined. It has been named the ‘Montana Plan’, because it derived from the planning retreat in Big Sky this summer.

It is so big it will take months to fully implement, but I am ready to guarantee that you are going to find something to love in it.

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The John Romano Workhorse Seminar will be coming again this March, and if you have never attended one before you have got to come see why people who have are nuts about it. It’s several days long, and it costs some serious coin, but it is absolutely positively the best buy going.


Steve Stewart was honored at the last Board meeting too. He has worked with the FJA for nearly 30 years, and, as thanks, all the current officers and nearly every single one of the past officers that Steve ever served during Steve’s tenure kicked in to help fund a vacation that Steve’s wife has wanted to take. They also unanimously voted to make him one of the very few lifetime honorary members of the FJA! We will miss Steve Stewart.


Finally, I was sad that I had to miss the first ever ‘Learn from the Legends’ seminar that occurred in November. I knew it was

going to be good, just because of the great – or maybe I should say legendary – presenters involved (as in Searcy, Coker and Grossman!). But the reports I heard from those who filled the packed room were all over the top excited about what they learned.

This year, we have had two brand new seminars introduced by our staff – the Voir Dire Institute and now this last one, both on top of a jam packed existing CLE schedule, You also have noticed the FJA Reading Page and the new ‘drip’ program distributing papers and essays from the smartest members we have. Our staff has done this without ever missing a beat, which is, honestly, amazing.

I told you that our new ED, Paul Jess was going to take us to great places, and he already is!!

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!

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Paul Jess @ (850) 521-1026

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Ringing in 2018 with Great Legislative Opportunities in Our Grasp by Paul Jess, Executive Director


ith the hustle and bustle of the holiday season upon us, the FJA is busy ramping up for the Florida Legislature’s 2018 session, which begins January 9th. This follows an unusually active period that hasn’t ceased since the close of the 2017 session in May. Resignations of senators and representatives, like Sens. Artiles and Clemens, and Reps. Eisnaugle, Raulerson, Miller, Baez, Diaz, and others, kept the political fires burning in the interim, with open seats across the state prompting special elections. FJA’s political team hit the campaign trail and worked to support civil justice champions in South Florida and Central Florida‘s I-4 region. We look forward to working with the Florida Legislature’s new members on a host of priority issues that were left to be completed after the 2017 session. A top issue for FJA members is auto insurance reform. We’re hoping to see action on that issue early in the session. During interim meetings, the House Commerce Committee passed the Responsible Roadways Act (House Bill 19) sponsored by Rep. Erin Grall, by a vote of 18 to 7. This bill would require bodily injury liability auto insurance with limits of $25,000/$50,000. The next stop for this bill is the House floor! In the Senate, the Banking and Insurance Committee in December heard the companion bill (Senate Bill 150) sponsored by former Senate President Tom Lee. Sen. Lee’s bill also requires $5,000 in medical payment insurance, while Rep. Grall’s bill does not. SB 150 will be back on the agenda of the Senate Banking and Insurance Committee the first week of the Legislative Session. In addition to auto insurance reform, lawmakers are considering many other issues that the FJA supports, including: enhancing nursing home safety and accountability; stopping human trafficking; and promoting judicial efficiency through prejudgment interest. And, of course, we are working to kill legislation of concern, including the bad House workers’ compensation and assignment of benefits “AOB” bills, as well as legal protections for driverless, robot cars. To the chagrin of giant corporations and big insurance lobbyists, the 2017 Florida Legislature rejected the “blame the attorneys” push by insurance industry supporters on workers’ compensation and AOB “reform” bills. This sets the stage for continued discussion on those issues. House members are picking up where they left off last May. When session convenes in January 2018, the House will consider and pass bills that are similar to the bills that passed the House but died in the Senate in 2017. This puts the two chambers in the same posture on those issues that existed at the end of the 2017 session. On workers’ compensation reform – as employers enjoy an almost 10 percent rate reduction in 2018 – FJA believes that with the apparent absence of a “crisis,” lawmakers have an opportunity to craft legislation to address

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a major problem in the system – ratemaking. FJA wants to curtail the insurance industry-controlled ratemaking cartel that currently has a lock on setting the amount Florida businesses pay for workers’ compensation insurance. FJA supports building a new and improved ratemaking system that: • Promotes greater transparency; • Fosters increased competition among companies offering workers’ com pensation insurance to businesses; and • Puts free-market principles to work to benefit Florida employers. Comprehensive ratemaking reform will bring badly needed stability, predictability, and constitutionality to the market. This is the kind of action needed to bring an end to the reactive cycle where laws passed to address workers’ compensation rate increases are then taken to the courts and ruled unconstitutional. The House workers’ compensation proposal pushes an unconstitutional insurance industry-backed attorneys’ fee cap on the claimant’s attorney but NOT on the fees of the insurance defense lawyers. Injured workers have a constitutional right to have access to the courts if their workers’ compensation benefits are inadequate. FJA supports reform that enhances benefits, like choice of medical provider for injured workers. Our FJA Board of Directors recently voted to vigorously oppose any legislation like the House bill. The House AOB bill curtails a homeowners’ right to assign benefits to a contractor hired to make emergency repairs. The bill also creates a complex and unworkable attorneys’ fee system. In some cases, the proposal would have small business contractors pay the insurance company’s attorneys’ fees even when the insurance company loses in court. Together with front line small-business owners who answer calls from homeowners in need of emergency repairs, the FJA is working to protect this long-held homeowners’ right to assign insurance benefits to the home-repair contractor of their choice. With so many issues important to our members’ practices being focused on in the upcoming session, our lobby team is badly outnumbered. Our equalizer is you. The FJA members who travel to Tallahassee to meet with lawmakers provide an important perspective to decision makers that they can’t get from the rank-and-file hired guns on the insurance and big business side. Lawmakers deeply respect constituents who take time from their daily lives and travel to Tallahassee to provide a view of the real-world impacts of many substantially inadequate ideas that corporate lobbyists regularly attempt to slip into the law. Simply put, we win when you come to Tallahassee. I encourage you to come to Florida’s Capital and stand up for civil justice in our state. Please check the Legislative Schedule under the Advocacy section of the FJA app. You can also contact Assistant Legislative Director Lynn McCartney at

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The Florida Justice Association (FJA) is excited to bring you an exclusive FREE FJA member benefit program provided by Office Depot and OfficeMax. This FJA member benefit is meant for you and is not available to the general public. As an FJA member, you can save up to 80% on thousands of items. Simply shop online at, or print your free discount card. All available discounts will be immediately applied to your purchases and your savings will be displayed on your receipt. Qualifying online orders of $50 or more are eligible for next business-day delivery to your home or office. Visit the website for details. As an FJA member, you can use it for personal or business purchases of thousands of eligible program items such as ink and toner, paper, cleaning and breakroom supplies, and even furniture! Businesses can enroll in account billing for added convenience. Find all the essential items you need to keep your home and business running as efficiently as possible.

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workh John Romano’s


MARCH 20-23 . MARRIOTT’S ORLANDO WORLD CENTER For 31 years, the FJA John Romano Workhorse Seminar has provided FJA Members with advanced legal training from the best plaintiff attorneys in Florida and in the country. The 32nd Annual Seminar will provide not only the best innovate ideas to give you the competitive advantage BUT also the horsepower you need to win your cases and the strategies, tips and proven results from other attorneys. The faculty of the Workhorse Seminar® is known for its intellectual horsepower, and they are there over the four days to share their knowledge with you. Come to the FJA John Romano Workhorse Seminar to navigate around those legal minefields and add game plans to your litigation playbook.

KEYNOTE FRIDAY 3.23.18 Featuring Dr. Bennet Omalu

First Doctor to Diagnose Chronic Brain Damage in NFL Athletes In 2002, Dr. Omalu made a career breakthrough when he became the first doctor to discover and identify chronic brain damage as a major factor in the deaths of some professional athletes. He called the disease Chronic Traumatic Encephalopathy (CTE), which he first discovered as the result of an autopsy he performed on Mike Webster—one of the best Centers in NFL history.

APPEARANCE SPONSORED BY November_December_12_14_17.indd 10

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7:00 am - Noon The Business of Lawyering 1:30 pm - 5:30 pm The Magic of Advocacy

6:30 pm - 10:00 pm Evening Sessions Advocacy Session A: FJA Annual Settlement Institute Advocacy Session B: Expert Witness Travel Journey Advocacy Session C: “My First Trial”


7:00 am - Noon Potpourri of Essential Topics

1:30 pm - 5:30 pm FJA Annual Medical School for Lawyers 6:30 pm - 10:00 pm Evening Sessions Advocacy Session A: 50 Shades of Attorney Fees Advocacy Session B: LOPs, Billing, Defending Depositions of Physician Billing Managers, Lien Resolution, MSAs, Protecting the Treating Physicians Advocacy Session C: Understanding and Appreciating the Details and Nuances of Everything You Must Know Relating to First Party Bad Faith and Third Party Bad Faith Cases


7:00 am - Noon Damages in Personal Injury and Wrongful Death Cases

ACCOMMODATIONS Marriott Orlando World Center 8701 World Center Drive Orlando, FL 32821 FJA Group Room Rate: $219 Resort Fee: $25/night Please make your room reservations by February 26, 2018 at 5:00 PM to receive the FJA Group Room Rate.

1:30 pm - 5:30 pm Product Liability 6:30 pm - 10:00 pm Evening Sessions Advocacy Session A: Overcoming Major Legal Hurdles in Personal Injury and Wrongful Death Cases Advocacy Session B: The “TLC” (Trial Lawyers College) Method of Handling, Litigating, and Trying Cases to Jurors Advocacy Session C: Class Actions — Understanding the Power of Class Action Cases in Terms of Winning Just and Essential Causes

FRIDAY, MARCH 23, 2018

7:00 am - 4:30 pm Traumatic Brain Injury/Closed Head Injury


TUESDAY - The Art, Science, and Methodology of “Showing the Story” to the Judge and Jury Sach D. Oliver, Bailey & Oliver, Rogers, AR WEDNESDAY– An Entertaining Presentation on “Memory” and How You As a Trial Lawyer…with an Enhanced Memory…Can Significantly Increase the Benefits Which You Bring to the Case, Ron White, National Memory Champion and Renowned Brain-Athlete, Grapevine, TX THURSDAY – Compassionate Gladiator and Gladiatrix Award Ceremony Kathleen Lenehan Nastri, Koskoff, Koskoff & Bieder Law Firm, Bridgeport, CT, and Kent Whittemore, The Whittemore Law Group, P.A., St. Petersburg, FL State of the FJA Address Dale Swope, FJA President, Swope, Rodante, P.A., Tampa


To make a reservation, please call 1-800-228-9290 November_December_12_14_17.indd 11

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In Brief


lorida Supreme Court holds that the Stand Your Ground law as set forth in §§776.012 and 776.032, Fla. Stat., does not confer civil liability immunity on a criminal defendant who is determined to be immune from prosecution in the criminal case. Kunmar v. Patel, So.3d , 42 FLW S828 (Fla. 9-28-2017). The Court quashed the decision of the Second DCA and approved the Third DCA’s decision in Professional Roofing & Sales, Inc. v. Flemmings, 138 So.3d 524 (Fla. 3rd DCA 2014). In the decision below, the Second DCA had concluded that “because the law clearly stated that it was granting immunity from being prosecuted or sued at all, the legislature must have intended a procedure with one immunity determination and, therefore, unambiguously modified the doctrine of collateral estoppel to effect a single immunity determination.” The Court rejected that analysis for five reasons: 1) “the statute is silent as to the procedure to be used for determining immunity, meaning the ‘plain language’ of the statute does not speak to this issue at all”; 2) “because the statute purports to grant a substantive immunity that cannot, in practice, be accomplished by any procedure, the statute cannot be read as implying a mandate for any particular procedure”; 3) “a statute will not be construed to modify the common law unless such intent is evident or the statute cannot otherwise be given effect”; 4) the civil attorney’s fees and costs provision in section 776.032(3) implies recognition by the legislature that civil immunity will be determined separately in a civil proceeding; and 5) “the 2017 amendment to the Stand Your Ground law creating different burdens of proof for criminal and civil immunity not only implies an understanding that separate immunity determinations will be made but also forecloses any argument, going forward, that the criminal ‘determination’ could ever be binding in a civil proceeding.” The Supreme Court imposed a one-year suspension on an attorney for approaching the mother of a child who was in a coma at a hospital after suffering a traumatic brain injury in a motor vehicle accident and successfully soliciting her to become a client of his for a fee. The Fla. Bar v. Dopazo, So.3d , 42 FLW S840 (Fla. 10-5-2017). The Court found there was no prior relationship between the attorney and the mother, neither she nor anyone acting on her behalf sought his legal service, his appearance at the hospital was completely unexpected, and the mother had a limited education and was in a fragile emotional condition at the time, which likely rendered her unable to make a rational decision whether to retain counsel or reject the attorney’s efforts to sign her up. The Court also found there was not clear and convincing evidence to directly support a related Bar allegation that the attorney was involved in a patient-client recruiting scheme with a non-lawyer that had been the subject of an FBI investigation.


The Supreme Court amended the rules relating to the objectives and scope of representation in short-term limited legal services programs such as through a nonprofit organization, court, government agency, bar association, or ABA-accredited law school. In re: Amendments to the Rules Regulating The Fla. Bar—Rules 4-1.2 and 4-6.6, So.3d , 42 FLW S849 (Fla. 10-19-2017). Noting that the rules “are intended to encourage lawyers to engage in these limited representations, which will increase access to justice at a time when legal aid funding and staff cannot accommodate all individuals who need legal representation,” the Court adopted a new Rule 4-6.6 to relax application of the conflict rules when a lawyer provides such limited representation and amended Rule 4-1.2 to exempt lawyers giving advice in such a program from the requirement that a client’s informed consent to representation limited in objectives or scope must be in writing.

The Fifth DCA erred in imposing a “rare” and “exceptional” circumstances requirement before a trial court may apply a contingency fee multiplier. Joyce v. Federated National Ins. Co., So.3d , 42 FLW S852 (Fla. 10-19-2017). After a detailed analysis of the history and development of the law relating to contingency fee multipliers in Florida, the Court reaffirmed its decisions regarding the requirements for the application of a contingency fee multiplier as set forth in Fla. Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985); Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990); and Bell v. U.S.B. Acquisition Co., 734 So.2d 403 (Fla. 1999). “Nowhere in Rowe did this Court state that the lodestar amount includes ‘a strong presumption’ of reasonableness which may only be overcome in ‘rare and exceptional circumstances’.” The Court also noted that “Bell evidences this Court’s separation from federal precedent in this area. This Court chose to continue to allow the use of multipliers, noting their usefulness in helping parties secure legal representation and their importance in ensuring access to courts.” In declining to adopt the federal courts’ rationale for rejecting contingency fee multipliers, the Court stated: “[T]he contingency fee multiplier provides trial courts with the flexibility to ensure that lawyers, who take a difficult case on a contingency fee basis, are adequately compensated. We also do not agree that the contingency fee multiplier encourages ‘nonmeritorious claims’ and would, instead, posit that solely because a case is ‘difficult’ or ‘complicated’ does not mean that the case is nonmeritorious. Indeed, without the option of a contingency fee multiplier, those with difficult and complicated cases will likely be unable or find it difficult to obtain counsel willing to represent them. … The point being, the lodestar amount, which awards an attorney for the work performed on the case, is properly analyzed through the hindsight of the actual outcome of the case, whereas the contingency fee multiplier, which is intended to incentivize the attorney to take a potentially difficult or complex case, is properly analyzed through the same lens as the attorney when

12 | September/October 2017 |

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making the decision to take the case. We disagree that the possibility of receiving a contingency fee multiplier leads to a ‘windfall.’… While the attorney for the insurer charges and receives an hourly rate regardless of whether the defense is successful, the insured’s attorney bears the risk of never being compensated for the number of hours spent litigating the case. This risk, among other factors, is what entitles the attorney to seek, and the trial court to consider, the application of a contingency fee multiplier.” In addition to quashing the instant Fifth DCA decision, the Court also disapproved State Farm Fla. Ins. Co. v. Alvarez, 175 So.3d 352 (Fla. 3rd DCA 2015), which the Fifth DCA had quoted for the proposition that a multiplier is proper only in rare and exceptional circumstances. “[A]s the plain language of the amendment mandates, we hold that Amendment 7 [Art. X, §25(a), Fla. Const.] was aimed at eliminating all discovery restrictions on ‘any records…relating to any adverse medical incident.’” Edwards v. Thomas, So.3d , 42 FLW S870 (Fla. 10-26-2017). In holding that external peer review reports are discoverable under Amendment 7, the Supreme Court rejected the Second DCA’s conclusion that Amendment 7 was only intended to abrogate the specific statutory limitations on discovery of adverse medical incidents that were in place prior to the amendment’s passage in 2004. “Reading Amendment 7’s language as a whole, and taking into account the definition of an ‘adverse medical incident,’ … suggests that the newfound right to access any record’ under Amendment 7 relating to ‘any adverse medical incident’ necessarily includes, but is not limited to, those adverse medical incident records required to be reported by state or federal law. … [T]he Second District’s interpretation of Amendment 7’s scope, on the other hand,

would render the language of ‘including, but not limited to,’ as ‘mere surplusage’—a result that is directly contrary to the rules of statutory and constitutional construction in this State. … Thus, it could not have been the intent of the Florida voters to enact Amendment 7 with such broadly-worded language, while simultaneously extremely limiting its scope and application only to those records previously protected under the licensing statutes. Therefore, we hold that Amendment 7’s application was not intended to be limited only to those adverse medical incident records previously protected by statute. A county court judge who had a longstanding adversarial and contentious relationship with a local attorney was reprimanded and suspended for violation of various Canons evidenced by lack of impartiality and his refusal to recuse himself in a case involving the attorney. Inquiry Concerning a Judge No. 16-496 Re: Philip James Yacucci, Jr., So.3d , 42 FLW S885 (Fla. 11-2-2017). The history between the two dating back to 2009 included the judge holding the attorney in contempt for showing up late to a hearing, the attorney being jailed for five days for “hotly disputed” reasons, the judge filing a Bar complaint against the attorney, the attorney running against the judge for a county court seat, the judge suing the attorney for defamation related to the campaign, a public altercation between the two at a polling place that resulted in the attorney suing the judge for assault and battery, and the judge informing the JQC’s Investigative Panel before which he appeared to discuss his campaign behavior that he would recuse himself on the attorney’s cases. After recusing himself for the next two-and-a-half years, he apparently decided he had done so long enough. When the judge refused to recuse himself | November/December 2017 | 13

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CASES&COMMENTARIES in one of the attorney’s cases in 2016, the attorney petitioned for a writ of prohibition, which prompted the judge to file on his own initiative a response detailing the history of disputes between the two, and things went downhill from there. The Supreme Court authorized amendments to civil jury instruction 502.2 (Wrongful Death Damages: Elements for Estate and Survivors) and 601.2 (Believability of Witnesses). In Re: Standard Jury Instructions in Civil Cases—Report No. 17-02, So.3d , 42 FLW S892 (Fla. 11-2-2017). The former clarifies that a survivor’s pain and suffering damages should be measured from the date of the injury, and the latter explains that it is proper for a lawyer to talk to a witness about what testimony the witness would give if called to testify. The Supreme Court struck down as violative of the right to privacy and access to courts parts of the 2013 amendments to the medical malpractice law which authorized secret ex parte defense interviews of health care providers seen by the claimant during the two-year period prior to the alleged negligence. Weaver v. Myers, So.3d , 42 FLW S906 (Fla. 11-9-2017). In striking §§766.1065(3)E and 766.106(6)(b)5., Fla. Stat., the Court stated: “In sum, we hold today that the right of privacy in the Florida Constitution attaches during the life of a citizen and is not retroactively destroyed by death. Here, the constitutional protection operates in the specific context of shielding irrelevant, protected medical history and other private information from the medical malpractice litigation process. Furthermore, in the wrongful death context, standing in the position of the decedent, the administrator of the decedent’s estate has standing to assert the decedent’s privacy rights. Finally, the Legislature unconstitutionally conditioned a plaintiff’s right of access to courts for redress of injuries caused by medical malpractice, whether in the wrongful death or personal

injury context, on the claimant’s waiver of the constitutional right of privacy.” The FJA, represented by Philip M. Burlington and Adam J. Richardson, participated as Amicus Curiae. A courtesy notice via letter and email advising the judges and parties of the death of a plaintiff did not trigger the running of the 90-day time frame for filing a motion for substitution where the notice had not been filed or recorded. Northrup Grumman Systems Corp. v. Britt, So.3d , 42 FLW D1985 (Fla. 3rd DCA 9-6-2017). Fla.R.Civ.P. 1.260(a)(1) requires that the suggestion of death be both filed with the clerk for docketing to make it part of the official record and served pursuant to Fla.R.Jud.Admin. 2.516(d). Rule 4-1.9 of the Rules Regulating the Florida Bar has not been expanded to require an attorney to recuse in a lawsuit against a former client if the representation would “violate the principle of client loyalty” or “creates an appearance of impropriety.” Alters v. Villoldo, So.3d , 42 FLW D1989 (Fla. 3rd DCA 9-6-2017). The Rule provides that a lawyer who has formerly represented a client in a matter must not afterwards “represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interest of the former client unless the former client gives informed consent.” The trial court erred in allowing a peremptory challenge to strike an African-American juror where the State’s response to a request for a race-neutral reason for the strike—that the juror gave the prosecutor a “dirty look”—was based on an incident that was neither observed by the trial court nor supported by the record. Ivey v. State, So.3d , 42 FLW D2004 (Fla. 1st DCA 9-13-2017). In this criminal proceeding, the prosecutor said the potential juror had given her “a look” after overhearing the prosecutor make a joke about the juror during a break in jury selection and believed that

LEGISLATIVE NOTES As the start of the 2018 Regular Legislative Session draws near, issues critical to FJA members, both pro and con, are moving through committee. Among those is the PIP repeal/mandatory bodily injury bill. As of this writing (with one week of interim committee meetings yet to go), the House version has moved through committee and is poised for consideration on the floor; however, the Senate version of the bill is still awaiting action in committee. Returning this year is a business-backed attack on workers’ compensation claimants that seeks to impose an arbitrary cap on attorney’s fees; this bill is also ready for consideration on the House floor when Session begins. Another returning issue is a move to limit the well-established right of homeowners to assign their insurance benefits to home repair contractors, who in turn then have the ability to pursue payment for their work directly from the insurer, and includes an effort to limit insurers’ liability for attorney’s fees in these cases. These issues and many others will be the focus of the FJA’s legislative efforts over the next few months.

Keep on top of fast-breaking legislative matters that will affect your practice through the FJA website and regular updates from FJA. For in-depth information on bills and amendments, complete legislative history, calendars, and access to real time coverage of legislative proceedings, visit the legislative websites at and www. Calendar: The 2018 Regular Session will be in the early time slot again next year like it was in 2016; it begins on January 9, 2018, and, if it ends on time, will conclude on March 9 2018. January 9-March 9

2018 Regular Legislative Session

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this reflected bias against her. Neither the trial judge, defense counsel, nor anyone else observed the encounter, but the trial court accepted the State’s proffered reason for the strike as race-neutral and removed the juror from further consideration. On appeal, the State conceded that nonverbal behavior may serve as a race-neutral reason only if it is observed by the trial court or otherwise has record support, but it argued unsuccessfully that the defense had failed to preserve the issue. A trial court abused its discretion in holding a defendant in direct criminal contempt for being intoxicated in court where the judge did not observe the man drink alcohol or behave inappropriately in his presence, and the transcript of the proceeding demonstrated that the man did not disrupt the proceedings or embarrass the court—the type of behavior that a finding of criminal contempt is intended to address. Brown v. State, So.3d , 42 FLW D2014 (Fla. 2nd DCA 9-15-2017). The statute which precludes governmental liability where a person is damaged or injured while inline skating in an area designated for such activity does not conversely establish that such liability exists when a person is injured while inline skating in an area that was not designated for such activity. Casserly v. The City of Delray Beach, So.3d , 42 FLW D2055 (Fla. 4th DCA 9-27-2017). The plaintiff, who was injured when he tripped over a pothole while rollerblading in the street, alleged that the city’s negligence in failing to repair or warn against a pothole in the street caused his injuries. The trial court dismissed the complaint with prejudice, reasoning that §§316.0085 and 316.2065(11), Fla. Stat., precluded liability on the part of the city, and the Fourth DCA, finding plaintiff’s arguments to the contrary “absurd,” agreed.

The trial court erred in applying a contingency risk multiplier to a fee award where the fee agreement between the attorney and his client was non-contingent. Fla. Farm Bureau Casualty Ins. Co. v. Gray, So.3d , 42 FLW D2086 (Fla. 1st DCA 9-29-2017). The fee agreement provided for billing for services at a specified hourly rate and then stated: “However, we may record higher hourly charges and in the event the Court were to award legal fees and costs then any higher amount awarded by the Court, including any multipliers, will then be the amount of legal fees.” The trial court found that the fee agreement provided for a “hybrid partial contingency fee” for which a multiplier is within the discretion of the court, and it awarded a multiplier of 2.0. On appeal, the First DCA found that the fee agreement required the client to pay the attorney’s usual billable rate, win or lose, and determined the trial court’s conclusion that it was a partial contingency fee contract was erroneous. The terms of an identical settlement proposal sent to two defendants provided sufficient apportionment where it clearly specified the total amount of the settlement being proposed and appraised each defendant of the amount needed to accept their respective offers. v. Papera, So.3d , 42 FLW D2154 (Fla. 4th DCA 10-11-2017). The identical offers, which were made individually to husband and wife defendants, specified that the amount being sought from the defendant was $40,000 and that upon tender of the total amount by that defendant all claims against both defendants would be dismissed. It also clearly specified that the total amount being sought from both defendants was $40,000, and, if both defendants accepted and each of them tendered the $40,000 to the plaintiff, the plaintiff would return $20,000 to each defendant.

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The court found that these terms were not ambiguous and there was sufficient apportionment set forth under the terms of the settlement proposal, noting that “[t]he provision for a potential refund does not negate that there was an apportionment of the joint settlement proposal between the parties.” In a dispute arising from a former partner’s departure from a law firm, the law firm, by filing suit against the former partner, waived its right to arbitrate the former’s partner’s counterclaim pursuant to an arbitration provision in the partnership agreement. Chaikin v. Parker Waichman LLP, So.3d , 42 FLW D2165 (Fla. 2nd DCA 10-11-2017). After the former partner’s abrupt departure from the firm, the firm sued him in Florida. The former partner raised several affirmative defenses and counterclaims, which the law firm then moved to dismiss as subject to an arbitration provision in the partnership agreement. The trial court found the arbitration provision to be valid and enforceable, and that the counterclaims fell within the ambit of the arbitration clause because they were based solely on the firm’s alleged breach of the agreement. The Second DCA noted that this created an incongruous situation in which the law firm’s suit remained before a trial judge in Lee County while the related counterclaims were, pursuant to the agreement, consigned to arbitration in Nassau, New York. The court found that, despite the law firm’s attempts to characterize them otherwise, the counts of its complaint included breaches of the partnership agreement that could have been pursued in arbitration. Thus, the court held, by pursuing relief in court based upon the partnership agreement, the law firm waived its right to arbitrate the former partner’s counterclaims, which were also based upon the agreement. In an appeal of an award of attorney’s fees, the affirmance of trial court’s application of a contingency fee multiplier to trial fees in the underlying action was not res judicata requiring the application of the contingency fee multiplier to the award of appellate fees in the litigation over the amount of fees to be awarded. TRG Columbus Development Venture, LTD v. Sifontes, So.3d , 42 FLW D2199 (Fla. 3rd DCA 10-18-2017). The court found that because the fees, and not the merits, were the only issue remaining after the basic entitlement to fees had been determined by a prior appellate decision, there was reason to treat the appellate fees differently from the fees awarded for the trial on the merits. Although a plaintiff’s contentions were “not particularly strong and were ultimately determined to be incorrect,” there was an arguable basis in law and fact for the claims and thus they were not sanctionable under §57.105, Fla. Stat. Minto PBLH, LLC v. 1000 Friends of Fla., Inc., So.3d , 42 FLW D2223 (Fla. 4th DCA 10-18-2017). The court noted that §57.105 must be applied “with restraint” and that merely losing a case is not a basis for sanctions. “Similarly, a court’s finding that a party’s interpretation of a legal document is incorrect ‘does not necessarily mean that the other party is necessarily entitled to section 57.105 fees.’”

The trial court erred in awarding fees against an expert witness as a sanction for time expended because of the expert’s less than truthful statements in deposition where the court did not follow the proper procedure and make the requisite findings required for indirect criminal contempt. Powell v. Washington, So.3d , 42 FLW D2253 (Fla. 5th DCA 10-20-2017). The Fifth DCA found that while it was not labeled as such by the trial court, the award of fees most closely resembled a sanction for indirect criminal contempt because the purpose was to punish rather than coerce compliance and it contained no purge provision permitting him to avoid the fine. “Here, [the plaintiff] moved for, and the trial court awarded, sanctions as punishment without the proper prosecution, requiring, inter alia, an order to show cause, an opportunity to respond, a full contempt hearing, and a judgment supported by a recital of the factual basis.” Question certified: “Does Rule 4-3.4(B) of the Rules Regulating the Florida Bar permit a party to pay a fact witness for the witness’s assistance with case and discovery preparation?” Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, So.3d , 42 FLW D2264 (Fla. 2nd DCA 10-25-2017). The Second DCA held that the trial court was correct in finding that a party’s fact witnesses are entitled to receive compensation for their assistance with case and discovery preparation. The discharge in bankruptcy of a wrongful death judgment did not extinguish the bankruptcy estate’s cause of action for legal malpractice that allegedly caused the debt that precipitated the bankruptcy. Herendeen v. Mandelbaum, So.3d , 42 FLW D2268 (Fla. 2nd DCA 10-25-2017). The court noted that at the time he filed for bankruptcy, the debtor had a potential claim for legal malpractice which became the property of the bankruptcy estate. The trustee of the bankruptcy estate stood in the shoes of the debtor as to any claim existing on the date of filing, and the trustee was entitled to pursue such claims to maximize the assets of the bankruptcy estate. The court found that to achieve that goal, the trustee can pursue any claim the debtor could have pursued prior to filing for bankruptcy. A special act that provides for a lien in favor of a local hospital system as a condition of providing services to patients is violative of Art. II, Sec. 11(a)(9), Fla. Const. Lee Memorial Health System v. Progressive Select Ins. Co., So.3d , 42 FLW D2274 (Fla. 2nd DCA 10-25-2017). The court found that even though the hospital system is a “public health care system,” the admission agreement for the provision of medical care to a patient who is required to sign it upon admission is a private, rather than public, contract. The court further found that the special law is thus one that provides for the imposition of a lien based on a private contract, which is specifically prohibited by Art. II, Sec. 11(a)(9). The court also found that the special act impairs the obligations of contracts entered into by an insurer and its insured or a claimant under the insured’s contract of insurance, in violation of Art. I, Sec. 10, Fla. Const. The Supreme Court has consistently relied on a bright-line rule that a cause of action for legal malpractice in litigation does not

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accrue until the underlying legal proceedings are complete through the appellate review, and nothing in the Court’s opinions suggests that a judgment may be final for purposes of the running of the statute of limitations for a malpractice action as to some issues but not to others. Forest v. Batts, So.3d , 42 FLW D2280 (Fla. 4th DCA 10-25-2017). The underlying case on which the malpractice action was based resulted in a final judgment which was appealed and reversed in part, requiring the issuance of an amended final judgment, which was also appealed and eventually voluntarily dismissed. The court held that last event was the date upon which the final judgment was truly final. “To parse an appeal to determine whether an issue relating to the later claim of malpractice was raised in the brief would invite the very case by case determination of the accrual date for a legal malpractice that the supreme court rejected in [Silverstone v. Edell, 721 So.2d 1173 (Fla. 1998)]. It could also result in the disruption of the attorney-client relationship during an appeal, which problem the bright-line rule of Silverstone cured.” A proposal for settlement is not required to be served by email. McCoy v R.J. Reynolds Tobacco Co., So.3d , 42 FLW D2281 (Fla. 4th DCA 10-25-2017). “At the time it is initially served, an offer of judgment is not a document ‘filed in any court proceeding’; both section 768.79(3) and Rule 1.442(d) expressly state that it is not to be filed. Under the plain language of Rule 2.516(a), then, the initial offer of judgment is outside of the e-mail requirements of that rule.” Where a doctor had provided a step that the plaintiff used to climb up onto an examining table in the doctor’s office, and the plaintiff, unaware that the doctor had removed the step during the course of the procedure, suffered a fall when getting off the examining table after the doctor had left the room, the complaint sounded in ordinary negligence rather than medical malpractice. Vance v. Okaloosa-Walton Urology, P.A., So.3d , 42 FLW D2372 (Fla. 1st DCA 11-6-2017). The trial court erred in dismissing the complaint with prejudice for failure to comply with the medical malpractice presuit requirements.

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.


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 or call (850) 521-1093 | November/December 2017 | 17

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FLORIDA SUPREME COURT SAVES CONTINGENCY FEE MULTIPLIERS: Leveling the Playing Field for Policyholders by Brent Steinberg


ver the past few years, Florida’s DCAs and federal district courts have issued a string of decisions which, for all intents and purposes, eliminated contingency fee multipliers in Florida. See, e.g., State Farm Florida Ins. Co. v. Alvarez, 175 So.3d 352 (Fla. 3d DCA 2015). Now, however, the Florida Supreme Court has issued an opinion resurrecting them. In Joyce v. Federated Nat’l Ins. Co., 42 FLW S852a, 2017 WL 4684352 (Fla. 10-19-17), the Court disapproved of the DCA opinions which held there is a “strong presumption” that the lodestar amount represents the reasonable fee that can only be overcome in “rare exceptional circumstances.” To reach that conclusion, the Florida Supreme Court expressly rejected the federal lodestar approach (see Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 544 (2010)) in favor of its prior precedents, reaffirming Fla. Patient’s Compensations Fund v. Rowe, 472 So.2d 1145 (Fla. 1985), Standard Guarantee Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990), and Bell v. U.S.B. Acquisition Co., 734 So.2d 403 (Fla. 1999). Joyce confirms that in tort and contract cases where attorney’s fees are awardable by statute or contract, courts applying Florida law must calculate the prevailing party’s fees in the following manner: I. First, calculate the “lodestar” amount (the number of hours reasonably incurred by the prevailing party’s attorney multiplied by the reasonable hourly rate) considering the eight Rowe factors:

1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly. 2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer. 3) The fee customarily charged in the locality for similar legal services. 4) The amount involved and the results obtained. 5) The time limitations imposed by the client or by the circumstances. 6) The nature and length of the professional relationship with the client. 7) The experience, reputation, and ability of the lawyer or lawyers performing the services. 8) Whether the fee is fixed or contingent. To guide the court’s determination of the “lodestar” amount, the prevailing party must introduce evidence of the work actually completed; evidence regarding only the requested hourly rate and total fee is insufficient. See Chandler v. KCCS, Inc., 224 So.3d 929 (Fla. 2d DCA 2017) (reversing the amount of a fee award because “the only evidence detailing the work actually completed consisted of an affidavit and related documents that were neither introduced into evidence nor stipulated to at the hearing”). In turn, the trial court must make specific findings regarding the reasonable hourly rate, the number of hours reasonably

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expended, and the appropriateness of any enhancement or reduction based on the Rowe factors. See Westaway v. Wells Fargo Bank, N.A. et al., 42 FLW D1926, 2017 WL 3791168 (Fla. 2d DCA 9-1-17) (holding trial court abused its discretion by reducing requested rates from $325 per hour to $200 and $250 per hour based only on the trial court’s belief that an attorney with that level of experience could not command $325 per hour).

No Right to Recover Costs for Frivolous Claims or Defenses? Courts generally apply §57.105 “with restraint,” refraining from sanctioning the losing party if there is any arguable basis to support the claim or defense. See Minto PBLH, LLC v. 1000 Friends of Florida, Inc., 42 FLW D2223, 4D16-4218, 2017 WL 4679605, at *2 (Fla. 4th DCA 10-18-17) (affirming denial of fees under §57.105(1) even though the plaintiff’s claims were “tenuous” and its counsel’s arguments were “not particularly strong”).

II. Second, determine whether a contingency fee multiplier is appropriate, considering the three Quanstrom factors:

But in those rare circumstances where sanctions under §57.105(1) are appropriate, only attorney’s fees, not costs, will be recoverable – at least, according to the Second DCA.

1) Whether the relevant market requires a contingency fee multiplier to obtain competent counsel; 2) Whether the attorney was able to mitigate the risk of nonpayment in any way; and 3) Whether any of the factors in Rowe are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client. That contingency fee multiplier may range from 1 to 2.5 depending on the likelihood of success at the outset of the case, “analyzed through the same lens as the attorney when making the decision to take the case.” Joyce, 2017 WL 4684352, at *10; see also Quanstrom, 555 So.2d at 834. Joyce marks a significant victory for policyholders who cannot afford to hire attorneys at an hourly rate. Indeed, as the Court recognized, the availability of a multiplier incentivizes an attorney to take on a potentially difficult or complex case on a contingency fee basis, “level[ing] the playing field between parties with unequal abilities to secure legal representation.” Joyce, 2017 WL 4684352, at *15 (quoting Bell, 734 So.2d at 411). However, practitioners must remember that contingency fee multipliers are not available in every case. Most notably, the Florida Supreme Court has held no multiplier may be awarded when a party is entitled to attorneys’ fees only as a result of beating a proposal for settlement. Sarkis v. Allstate Ins. Co., 863 So.2d 210, 222 (Fla. 2003). And, as the First DCA recently held, the payment of attorney’s fees has to be at least partially contingent upon a successful resolution of the case. Compare Florida Farm Bureau Cas. Ins. Co. v. Gray, 42 FLW D2086, 2017 WL 4318904 (Fla. 1st DCA 9-29-17) (overturning multiplier where attorney was billing at his normal rate regardless of the outcome, and that the only contingent aspect was if the case was won and court determined fee) with Lane v. Head, 566 So.2d 508, 511 (Fla. 1990) (upholding multiplier where fees were partially contingent on the outcome of the case, where attorney would receive only two-thirds of his normal fee if they lost).

In In re Estate of Assimakopoulos, 42 FLW D2232c, 2017 WL 4764790 (Fla. 2d DCA 10-20-17), the Second DCA held that expert witness fees (which are properly treated as costs under §2.231(2)) are not recoverable under the plain language of §57.105(1). That section provides that a court “shall award a reasonable attorney’s fee” to the prevailing party on any claim or defense when the losing party knew or should have known that claim or defense was “not supported by the material facts” or “not supported by the application of the then-existing law to those material facts.” The Second DCA contrasted this language with §57.105(2), which permits sanctions when the court finds that an action by the opposing party “was taken primarily for the purpose of unreasonable delay.” Unlike subsection (1), subsection (2) provides for a sanction of “damages” measured as the “reasonable expenses incurred in obtaining the order.” Thus, the Second DCA reasoned that costs could be included as part of “damages” under subsection (2), but not under subsection (1), because that section provides only for an award of “attorney’s fees.” Although the Second DCA’s holding is clearly supported by the plain language of the statute, the First and Third DCAs previously held that both attorney’s fees and costs are recoverable under §57.105(1). Accordingly, the Second DCA certified conflict with Martin County Conservation All. v. Martin County, 73 So.3d 856, 865 (Fla. 1st DCA 2011) and Smith v. Viragen, Inc., 902 So.2d 187, 191 (Fla. 3d DCA 2005). Should the Supreme Court decline to adopt the First and Third DCA’s expansive reading of §57.105(1), perhaps the legislature will attempt to fix this drafting error. Excusable Neglect from Hurricane Prep Take solace in knowing a court should find excusable neglect where a filing deadline is missed, at least in part, because of an assistant’s failure to properly calendar the deadline while preparing for a hurricane. See Saint Luc Jean Noel v. James B. Nutter & Co. et al, 42 FLW D2354a, 2017 WL 4950028 (Fla. 3d DCA 11-1-17).

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Insurer May Waive Right to Complain About Improperly Served CRN

if to imply that the filing of the bad faith lawsuit is what ended the “cure period.”

All too often we read about a UM bad faith case lost because of a defective or non-existent Civil Remedy Notice of Insurer Violation (“CRN”).

But that is clearly not the law and likely not what the Fourth DCA meant.

By statute, the Department of Financial Services (“DFS”) “and the authorized insurer must have been given 60 days’ written notice of the violation” as a condition precedent to the filing of a statutory (as opposed to a common law) bad faith lawsuit. §624.155(3)(a), Fla. Stat. A statutory bad faith claim “simply never comes into existence” until the 60-day “cure period” runs without the payment of the damages owed under the policy. See Talat Enterprises, Inc. v. Aetna Cas. & Sur. Co., 753 So.2d 1278, 1284 (Fla. 2000). You cannot “substantially comply” with the statute by providing notice of an alleged §624.155 violation in some other manner. Likewise, the insurer cannot do anything to waive the CRN filing requirement. See Bollinger v. State Farm Mut. Auto. Ins. Co., 538 Fed. Appx. 857, 866 (11th Cir. 2013). HOWEVER, as a recent Fourth DCA case makes clear, an insurer CAN waive the requirement that the CRN be served upon it. In Evergreen Lakes HOA, Inc. v. Lloyd’s Underwriters at London, 42 FLW D2226a, 2017 WL 4679597 (Fla. 4th DCA 10-18-17), the policyholder mailed a copy of its CRN to the address listed in the DFS database, which the insurer later claimed was incorrect. Regardless, it was undisputed that the insurer’s counsel got a copy of the CRN anyway, albeit a few weeks after it was filed with the DFS. The insurer then replied to the CRN within 60 days of filing without complaining about improper service (or lack thereof ) of the CRN. So no harm, no foul, right? Well, several years later in the bad faith lawsuit (which followed the insurer’s rejection of the insured’s settlement offers), the trial court granted the insurer summary judgment, holding it was not “given 60 days’ written notice of the violation” as required by §624.155(3)(a) because of the alleged mailing error. Thankfully, the Fourth DCA reversed on appeal, holding the insurer “waived compliance with any such requirement by responding to the CRN within 60 days of the DFS acceptance date without challenging its timely receipt of the CRN.” The takeaway is that while an insurer cannot waive the requirement that a CRN be filed, it may be estopped from raising a defense based upon an alleged defect in the form or service of the CRN. Although Evergreen Lakes is, on balance, a well-reasoned opinion, there is one part of the opinion that requires some clarification. The Fourth DCA noted, in dicta, that the insurer had “almost four years to cure the alleged violation before it was sued for bad faith,” as

The 60-day “cure period” runs from the date the CRN is filed with the DFS, not the date it is received by the insurer or the date a bad faith lawsuit is filed. See §624.155(3)(d), Fla. Stat. If the insurer tenders the amount owed on the 61st day after the CRN was filed, the insured can still file a bad faith lawsuit, even if that tender occurred within 60 days of the insurer having received the CRN. See Paz v. Fid. Nat. Ins. Co., 712 So.2d 807 (Fla. 3d DCA 1998). The Evergreen Lakes court similarly declined to adopt the insurer’s argument that §624.155 requires an insurer be “given” a copy of the CRN at the same time as the DFS. So, when the court stated the insurer had “almost four years to cure the alleged violation before it was sued for bad faith,” it was merely observing the insured was willing to settle within the policy limits for nearly four years until, left with no other choice, it finally filed suit for both breach of contract and insurance bad faith. Excess UM Carrier Gets No “Credit” For Primary UM Payment Similar to the Evergreen Lakes case discussed above, the Second DCA recently held that a UM carrier is required to specifically plead, as an affirmative defense, that an insured has failed to comply with a condition precedent to coverage or else that defense is waived. See Schoeck v. Allstate Ins. Co., 42 FLW D2182a, 2017 WL 4557756 (Fla. 2d DCA Oct. 13, 2017) (reversing summary judgment where affirmative defense was insufficiently pled). The Schoeck court also noted that a policy provision which requires an insured to “exhaust” her primary UM carrier’s benefits before suing her excess UM carrier would be contrary to public policy. Finally, and perhaps most significantly, the Second DCA held that “section 627.727(9)(c) does not provide that insurers may credit their excess UM benefits with a primary insurer’s payouts.” Section 627.727(9)(c) is the provision which allows nonstacking UM policies to limit an injured insured’s recovery to the highest UM limits afforded to any vehicle insured under that policy. Allstate, the plaintiff’s excess UM carrier, argued that subsection meant it should get “credit” for the proceeds owed by the primary UM carrier, GEICO. On that basis, Allstate convinced the trial court that its maximum exposure was limited to $5,000 ($25,000 Allstate excess UM policy – $20,000 GEICO primary UM policy). The Second DCA held that ruling was erroneous, as neither section 627.727(9)(c) nor the policy language supported Allstate’s interpretation.

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To Posture, or Not to Posture: That is the Remand Question Federal courts are usually satisfied that the federal court jurisdictional threshold is met when the pre-suit demand and UM limit both exceed $75,000. See “Tips for Auto Practitioners,” Journal, May/June 2017. But that is by no means a bright-line rule. The reality is that because federal judges may rely upon their “judicial experience and common sense” to determine whether the claims “likely exceed the $75,000 jurisdictional requirement,” they have virtually unlimited discretion in this arena. Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1062 (11th Cir. 2010). Take for example Webb v. Gov’t Employees Ins. Co., 2017 WL 4999550 (M.D. Fla. Nov. 2, 2017). The insured suffered hearing loss and TMJ, and $10,692.27 in medical expenses, as a result of an underinsured motorist’s negligence. The insured had $250,000 in UM benefits with GEICO and demanded $305,000(?) to settle. When GEICO rejected that offer, the insured filed a complaint for UM benefits and insurance bad faith. He did not make a claim for specified damages, only generally alleging that the damages exceeded $15,000. After considering all of those facts, the court found that the demand letter “reflects mere posturing, rather than a reasonable assessment of the value” of the insured’s UM claim, and thus did not provide a basis for determining that the amount in controversy exceeded $75,000. Motion for remand granted. On the other hand, where the insured alleges in the complaint that damages are “far in excess of the $100,000 UM coverage,” good luck convincing the federal judge that such allegation is “mere posturing” or that the amount in controversy is not greater than $75,000. See Koch v. State Farm Mut. Auto. Ins. Co., 2017 WL 4231107 (M.D. Fla. Sept. 25, 2017) (denying motion for remand). Navigating the PFS Minefield in Multi-Defendant Cases Drafting a proposal for settlement in a case against multiple defendants can feel like building on quicksand. Here are a few helpful pointers that can be derived from recent cases: When the proposal is to two defendants and one is alleged to be “solely vicariously or derivatively liable,” a joint proposal for settlement served on both need not apportion the amounts owed by each party. See Fla. R. Civ. P. 1.442(c)(4); Saterbo v. Markuson, 210 So.3d 135, 140 (Fla. 2d DCA 2016). But what if both defendants are alleged to be directly liable? For a “joint offer” to be valid, it must apportion the amount attributable to each defendant in order to give each of them an opportunity to accept or reject the proposal. Compare Atl. Civil, Inc. v. Swift, 42 FLW D516, 2017 WL 815362 (Fla. 3d DCA 3-1-17) with Pratt v. Weiss, 161 So.3d 1268, 1272 (Fla. 2015).

It is easy to shoot yourself in the foot when making a joint offer, so the safest course is for a single plaintiff to serve a single defendant with a PFS. But even then, if a PFS served on one defendant offers to resolve claims against additional defendants, it still constitutes a “joint proposal” subject to the apportionment requirement. See Audiffred v. Arnold, 161 So.3d 1274, 1280 (Fla. 2015). Against that backdrop, is it even possible for a plaintiff to craft a valid proposal for settlement that gives each defendant an opportunity to settle the entire case? The Fourth DCA thinks so. In, Inc. v. Papera, 42 FLW D2154e, 2017 WL 4535042 (Fla. 4th DCA 10-11-17), the plaintiff served separate proposals for settlement on husband and wife for $40,000 each, but stated that the PFS, if accepted, was “intended to terminate the litigation in its entirety as it pertains to [Plaintiff’s] claims against Defendants.” The PFS continued: An identical Proposal for Settlement has been proposed to Defendant [wife]. Therefore, if either Defendant accepts their Proposal, [Plaintiff] will terminate the litigation in its entirety, as it pertains to both Defendants. Put another way, if Defendant [husband] accepts this Proposal, [Plaintiff] will dismiss its claims against both [husband] and [wife]. Therefore, it should be clear to both Defendants that [Plaintiff] is not seeking $40,000.00 from each Defendant, but is instead seeking a total of $40,000.00 from both Defendants. In the unlikely event that both Defendants timely accept and tender the $40,000.00 to Plaintiff, then Plaintiff shall return $20,000.00 to each Defendant. The Fourth DCA held the PFS was valid because (1) there was sufficient apportionment – each defendant owed $40,000; (2) the potential refund did not create an ambiguity or negate the apportionment; and (3) the husband and wife could decide, either jointly or separately, to accept or reject the settlement proposal. Before you adopt the PFS as your new “form” for multidefendant cases, just remember that over the past 15 years or so, no area of the law has been plagued with more conflicting and downright confusing trial and appellate decisions than PFS issues. So tread lightly, my friends.

BRENT STEINBERG Mr. Steinberg is an attorney at Swope, Rodante P.A. in Tampa. He is a proud graduate of the University of Florida and UF College of Law, where he was a member of the Florida Law Review. Mr. Steinberg is an EAGLE member of the FJA, has served as the Chair of the FJA Auto Insurance Committee since 2016, and is a FJA Director at Large for 2017-18. He represents victims of catastrophic personal injury, wrongful death, insurance bad faith, legal malpractice and wrongful coverage denials, handling cases throughout Florida and Georgia at both the trial and appellate levels. | November/December 2017 | 23

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GAMBLING WITH LIVES: THE ABILIFY TRAGEDY by Christopher G. Paulos and Lexi J. Hazam


INTRODUCTION magine that your most fundamental and routine daily thoughts were invaded by urges and ideas outside of your control. Imagine that, for some unknown reason, you were driven to think and act in ways that were no longer consistent with the person whom you knew yourself to be and you were compelled to engage in behaviors that were harmful to you and those you love. What if your minute-to-minute thoughts and emotions pushed you to make choices and satisfy urges that you knew were dangerous and destructive. Picture the crippling feeling of knowing that you were no longer able to control or trust your own decision-making ability. Evidence suggests that hundreds of consumers in the United States have suffered this debilitating fate as the result of being exposed to the drug Abilify (aripiprazole). Patients being treated with Abilify have developed uncontrollable gambling, eating, shopping and sexual urges. These urges are so strong that unsuspecting patients have destroyed their lives and even committed crimes to satisfy these impulses. At first blush this type of “mind control” sounds like science fiction, but the science behind the cause and effect of Abilify and impulse control injuries is far from fiction. To the contrary, it is generally accepted that Abilify can cause these maladies. Abilify, manufactured by Otsuka America Pharmaceutical, Inc. and Otsuka Pharmaceutical Co., Ltd. (collectively “Otsuka” or “OPC”) and marketed and distributed by Bristol-Myers Squibb Company (“BMS”), has generally been used to treat patients with schizophrenia, bipolar disorder, autism spectrum disorders, and as an adjunct therapy for depression. Dopamine is a neurotransmitter that helps control the brain’s reward and pleasure centers – areas of the brain that are stimulated and activated by gambling, shopping and sex. Abilify is a partial dopamine agonist that may also act as a full agonist.

Cutting Corners to Reach Blockbuster Sales Discovered by OPC in 1988, Abilify was approved for sale in the United States in November 2002 and in Japan in January 2006. It quickly became one of the top selling drugs in the United States. In the last 15 years, Abilify has filled pharmacy shelves and medicine cabinets after BMS waged aggressive and allegedly misleading promotional campaigns and marketing strategies. Through 2015, Abilify occupied the top sales position in its class for a prescription drug in the United States, and reached seventh place in the global ranking of all drug sales. As the top-selling antipsychotic drug in the United States, BMS touted Abilify as its “2013 largest-selling product,” noting annual sales of $2.3 billion. The following year, Abilify’s U.S. sales revenues reached $417 million and worldwide revenues reached $555 million in just the Second Quarter of 2014. But plaintiffs allege that these staggering profits have come with a moral cost. For example, to push the drug on an already-saturated market for antipsychotic medications, BMS and Otsuka made payments to doctors to promote Abilify. Over just 15 months, from August 2013 to December 2014, BMS paid $10.6 million relating to Abilify promotional efforts to 21,155 physicians in the United States. As Abilify was reaching its peak in sales, BMS faced allegations of off-label marketing and kickbacks - illegal marketing and sales techniques used by medical products companies to drive sales, grab shares of profit, and infiltrate saturated competitive markets with their new products. Ultimately, BMS’s aggressive promotion of Abilify, including for offlabel use, was part and parcel of a $515 million settlement with federal and state regulators over BMS’s alleged misconduct in marketing several of its products. This included allegations that BMS/Otsuka had pushed Abilify for use with children and to treat elderly patients for dementia-related psychosis, patient populations that had not been cleared by the FDA to use the drug. Otsuka later paid more than $4 million to resolve similar allegations related directly to Abilify. According to the FDA, “[a] search of the FDA Adverse Event Reporting System (FAERS) database and the medical literature since the approval of the first aripiprazole product (Abilify) in November 2002 through mid-January 2016 identified 184 case reports (167 FAERS cases and 17 medical literature cases) indicating an association between aripiprazole and impulse-control problems.” This included 164 cases of pathological gambling, nine cases of compulsive sexual behavior; four cases of compulsive buying; three cases of compulsive eating; and four cases involving multiple impulse-control problems. Notwithstanding its “blockbuster drug” status, Abilify may not be very efficacious in many patients. According to a rigorous study by the Cochrane Collaboration, there is limited evidence that Abilify leads to symptom reduction when added to antidepressants, and side effects are more frequent under Abilify augmentation treatment. The limited efficacy of Abilify as an adjunct therapy may be greatly outweighed by the very real dangers and debilitating effects of impulse control disorders in some patients. Compulsive gambling is a major

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MASSTORTS psychiatric disorder. The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) first recognized pathological gambling as a psychiatric disorder in 1980. Compulsive gambling not only causes extreme financial hardship, but frequently leads to job loss, divorce and suicide. The National Council on Problem Gambling estimates that one in five gambling addicts will attempt suicide - a doubling of the rate associated with other addictions. Studies have shown that compulsive gamblers, including those on Abilify, feel such strong urges to gamble that they are willing to commit crimes to support their compulsion. BMS & Otsuka Knew the Deck Was Stacked Abilify works on dopamine. The fact that dopamine, and drugs that manipulate the brain’s use of it, is implicated in the way our bodies process and react to reward is taught in medical school. This is far from a novel concept. Scientific literature has consistently identified dopamine manipulation as a genesis for reward seeking behavior in humans. Dopamine’s role in compulsive behavior and pathological gambling is well-known. Dopaminergic reward pathways have frequently been implicated in the etiology of addictive behavior. Scientific literature has identified increases in dopamine as a potential cause of pathological gambling for years. Other dopamine-manipulating drugs, such as Mirapex (pramipexole), used primarily for the treatment of Parkinson’s disease, have also been associated with compulsive gambling. There are biologically plausible mechanisms by which Abilify can cause compulsive behavior. Plaintiffs allege that by manipulating the specific receptors in the brain to either attach to or block dopamine, Abilify interacts with these receptors and affects the mesolimbic system, creating urges towards reward. Abilify also has an indirect effect on the mesocortical dopamine system and impairs decision making functions. In essence, for some patients, Abilify is the pharmacological equivalent of stomping on the accelerator of the brain’s reward system, while severing the brakes on the brain’s ability to weigh decisions. Evidence that Abilify causes pathological gambling has existed for years. The FDA’s 2016 review identified 12 case reports in the published literature where pathological gambling was reported with Abilify. The case reports were published between 2010 and 2014. One case included a positive dechallenge and a positive rechallenge, that is, evidence that the patient’s compulsive gambling ended when they ceased using Abilify, and started again when they renewed their use of the drug. This observable cause-and-effect relationship is powerful evidence of drug-related causation. Ignoring US Consumers While Whitewashing the Risks Even in light of the growing body of scientific evidence showing that Abilify can cause debilitating impulse control disorders, BMS and Otsuka continued to peddle the drug without proper warnings. And, even after they were ultimately forced by European and Canadian regulators to inform consumers of these risks, BMS/Otsuka chose not to warn consumers in the United States. In September 2011, BMS issued a 6-Month Periodic Safety Update Report acknowledging a plausible mechanism for pathological gambling. The Report stated that an article, Chau et al., The Neural Circuitry of Reward and Its Relevance to Psychiatric Disorders, “does suggest a possible mechanism by which drugs that act on dopamine

neurons, like aripiprazole, might possibly have some effect on behavior related to reward.” The Report also acknowledged seven serious reports of pathological gambling, three in the medical literature and four spontaneous reports, as well as sixteen cases of pathological gambling in the BMS company safety database. However, it wasn’t until October of 2012 that BMS/Otsuka took any action to warn consumers or prescribers of the risk of pathological gambling, and even then, it did so only in Europe, after being required to do so by the European Medicines Agency. BMS/Otsuka did not make these changes to the labels or warnings in the United States or Canada. Then, in November 2015, Canadian regulators concluded that there is “a link between the use of aripiprazole and a possible risk of pathological gambling or hypersexuality” and found an increased risk of pathological gambling and hypersexuality with the use of Abilify. BMS/Otsuka was then required to add warnings for pathological gambling to Abilify sold in Canada. Despite these warnings and advisories in Europe and Canada—for the same drug sold to patients in the United States—the labeling for Abilify in the United States did not warn about the risk of compulsive gambling and contained no mention that pathological gambling had been reported in patients prescribed Abilify until January 2016, when pathological gambling was added only to the Postmarketing Experience section of the label. Additionally, BMS/Otsuka failed to make any mention of gambling in the patient medication guide until August 18, 2016, months after the release of FDA Drug Safety Communications warning “that compulsive or uncontrollable urges to gamble, binge eat, shop, and have sex have been reported with the use of the antipsychotic drug aripiprazole.” The FDA further stated, “[i]n the majority of case reports patients with no prior history of the compulsive behaviors experienced uncontrollable urges only after starting aripiprazole treatment. Within days to weeks of… discontinuing aripiprazole, these uncontrollable urges stopped.” A unique aspect of the new FDA-mandated warning that has been added to Abilify labels in the US is the language related to people not even taking the medication. The label now warns that the patient’s families and caregivers should be warned of the pathological urges that Abilify may cause. This is indicative the far-reaching damage that such compulsion injuries pose, including to those related to the patient. Sticking Their Head in the Sand Even when faced with evidence that Abilify causes compulsive behaviors like pathological gambling, and despite calls from the medical community to conduct research and better warn about this possible effect of Abilify, BMS/Otsuka appear to have failed to investigate or conduct any studies on the compulsive behavior side effects of Abilify. Or, at the very least, they have yet to make public the results of any internal studies or investigations. Nevertheless, independent researchers have begun to conduct studies and further clarify the causal picture. A disproportionality study of the FDA Adverse Event Reporting System showed a proportional reporting ratio for compulsivity of 8.6 for

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MASSTORTS Abilify (a ratio of more than three indicates a signal of an adverse event). Additionally, Etminan et al. conducted a case control study within a large insurer database showing a statistically significant increased risk of pathological gambling and impulse control disorder associated with aripiprazole. The study found a statistically significant rate ratio for pathological gambling of 5.23, a greater than five-fold increased risk. In addition, a sensitivity analysis in subjects with bipolar disorder yielded an estimated rate ratio for pathological gambling of 3.38. The study also yielded a statistically significant estimated rate ratio for impulse control disorder of 7.71, a greater than seven-fold increased risk. Practice Pointers The apparent disregard for US consumers by BMS/Otsuka, as evidenced by their failure to warn about these psychiatric injuries linked to Abilify for years after having warned foreign users, has resulted in litigation. Like any other products or pharmaceutical case, there are several key issues to keep in mind when evaluating cases that may cross your desk. At the outset, identifying the product is critical. Whether the product was name-brand Abilify or a generic must be thoroughly investigated to determine the identity of potential defendants and the possibility of generic preemption issues. Consumers may have used brand name and generic products, as well as other dopamine agonist drugs like Mirapex or Requip. Early investigation designed to determine the dose, duration and delivery of Abilify, is critical. You should look to various sources to determine dose, duration and delivery, as well as name-brand drug exposure, specifically pharmacy records or insurance records indicating NDC codes. In order to demonstrate compulsive behavior, financial records and gambling records (Win/Loss statements) are helpful sources of data. Litigation Landscape The number of patients taking Abilify coupled with the risk for impulse control disorders seen in the scientific models indicates that a substantial number of consumers have likely been harmed by the drug. Indicative of this is the fact that since 2016, hundreds of cases have been filed in state and federal courts around the country. On October 3, 2016, the Judicial Panel on Multidistrict Litigation consolidated the federal cases in MDL No. 2734 IN RE: Abilify (Aripiprazole) Products Liability Litigation before Hon. Casey Rodgers (Chief Judge) in the Northern District of Florida, Pensacola Division. The MDL represents the vast majority of cases filed to date and has been leading the litigation schedule. Currently, there are 375+ cases filed in the MDL. The MDL Court has swiftly entered Case Management Orders providing for direct filing, short form complaints, and abbreviated service. Bellwether trials are scheduled to occur in the summer of 2018. The second largest conglomeration of cases has formed in New Jersey State Court, in Bergen County, New Jersey, before Hon. James Deluca. There are approximately 40+ cases filed before Judge Deluca, and the parties have recently filed a joint motion to consolidate the cases pursuant to New Jersey’s mass tort procedures. The parties have begun discovery into general liability and case-specific work-up of bellwether trials to be conducted beginning in June 2018.

Conclusion Mental health problems, and their pervasiveness and severity, have been at the forefront of the news cycle. Whether tied to the gun violence epidemic, or the veteran suicide endemic, psychiatric disease and disability affect millions of Americans. The drugs that doctors and patients rely upon to address mental health issues are expected to cure not harm; to heal not exacerbate. Unfortunately for some patients, drugs like Abilify have caused dangerously debilitating side effects. Compulsive urges, particularly gambling, are a serious harm with dire consequences that permeate all aspects of life, and have long lasting if not permanent effects to those that suffer from it. Lives are destroyed by compulsive gambling, but through the current litigation process those who were not warned of these dangers may achieve some relief. _________________ W. Schulz, Neuronal Reward and Decision Signals: From Theories to Data, Physiol Rev. 2015 (Jul.); 95(3): 853–951. 2 (last visited Nov. 17, 2017). 3 (last visited Nov. 17, 2017). 4 Department of Justice Press Release, “Bristol-Myers Squibb to Pay More Than $515 Million to Resolve Allegations of Illegal Drug Marketing and Pricing,” located at: opa/pr/2007/September/07_civ_782.html 5 Department of Justice Press Release, “Otsuka to Pay More than $4 Million to Resolve off-label Marketing Allegations Involving Abilify,” located at: March/08_civ_244.html 6 See May 3, 2016, FDA Safety Communication, located at: https:// (last visited 11/9/2017). 7 Komossa K., Depping A.M., Gaudchau A., Kissling W., Leucht S., Second-generation antipsychotics for major depressive disorder and dysthymia, Cochrane Database Syst. Rev. (Dec. 8) 2010. 8 Diagnostic and Statistical Manual of Mental Disorders, Am. Psych. Ass’n. ed., 5th ed. 2013, pp. 481, 585-89; (“DSM”) 9 Addressing Suicide Risk Among Compulsive Gamblers, located at: www. 10 Gavaudan et al., Partial Agonist Therapy in Schizophrenia: Relevance to Diminished Criminal Responsibility, 55 J. Forensic Sci. 1659, 1659-60 (2010); see also Potenza, et al. Illegal Behaviors in problem Gambling: Analysis of Data from a Gambling Helpline, J. Amer. Acad. Of Psych. & Law, 28 (4), 389-403 (2000). 11 Chau et al., The neural circuitry of reward and its relevance to psychiatric disorders, Curr. Psychiatry Rep. 2004 (Oct.); 6(5):391-9. 12 Dodd et al., Pathological Gambling Caused by Drugs Used to Treat Parkinson Disease, Arch Neurol., 62(9): 1377-1381 (2005). 13 Abilify is a D2 receptor partial agonsim (functional antagonist) that concentrates endogenous dopamine on D3 receptors. In addition, Abilify may also be a full D3 agonist. 14 FDA Pharmacovigilance Review of Aripiprazole and Impulse Control Disorders, March 10th, 2016; See also Johannes D.M. Schlachetzki & Jens M. Langosch, Letter to the Editors: Aripiprazole Induced Hypersexuality in a 24-Year-Old Female Patient with Schizoaffective Disorder? 28(5) J. Clinical Psychopharmacology 567, 567-68 (2008); Gilles Gavaudan et al., Partial Agonist Therapy in Schizophrenia: 1

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Relevance to Diminished Criminal Responsibility, 55 J. Forensic Sci. 1659, 1659-60 (2010) (2 Cases); Milton G. Roxanas, Pathological Gambling and Compulsive Eating Associated with Aripiprazole, 44 Australian & New Zealand J. of Psychiatry 291, 291 (2010); M. Kodama & T. Hamamura, Aripiprazole-Induced Behavioural Disturbance Related to Impulse Control in a Clinical Setting, 13 Int’l J. Neuropsychopharmacology 549, 549-50 (2010) (2 Cases); Julien Cohen et al., Aripiprazole-Induced Pathological Gambling: A Report of 3 Cases, 6 Current Drug Safety 51, 51-52 (2011); EunJin Cheon et al., Two Cases of Hypersexuality Probably Associated with Aripiprazole, 10 Psychiatry Investigation 200, 200-01 (2013); L. Gaboriau et al., Aripiprazole: A New Risk Factor for Pathological Gambling? A Report of 8 Case Reports, 39 Addictive Behaviors 562, 562-64 (2014). 15 Smith, N., Kitchenham, N., & Bowden-Jones, H., Pathological gambling and the treatment of psychosis with aripiprazole: case reports, The British Journal of Psychiatry, 199(2), 158-159 (2011). 16 See, e.g., “The Use of the WHO-UMC System for Standardised Case Causality Assessment,” standardised-case-causalityassessment.pdf; see also, Shakir, Causation and Correlation in Pharmacovigilance, in J. Talbot & P. Waller (Eds.), Stephens’ Detection of New Adverse Drug Reactions (5th ed., p. 333)(2004); See also Strom BL (2012). Chapter 3 Basic Principles of Clinical Epidemiology Relevant to Pharmacoepidemiologic Studies. In Strom BL, Pharmacoepidemiology (5th ed., p. 86); Edwards IR, Olsson S., Lindquist M, Hugman B. (2005). Chapter 10 Global Drug Surveillance: The WHO Programme for International Drug Monitoring. In Strom BL, Pharmacoepidemiology (4th ed., p. 175) 17 Supra, n.6. 18 See 2017 Abilify U.S. Full Prescribing Information, section entitled “Patient Counseling Information: Pathological Gambling and Other Compulsive Behaviors.” 19 Moore, T.J., et al., Reports of Pathological Gambling, Hypersexuality, and Compulsive Shopping Associated with Dopamine Receptor Agonist Drugs, JAMA Intern. Med. 2014 (Dec.) 174(12):1930-3. 20 Etminan, M., et al., Risk of Gambling Disorder and Impulse Control Disorder with Aripiprazole, Pramipexole, and Ropinirole: A Pharmcoepidemiologic Study, J. Clin. Psychopharmacol. 2017 (Feb.) 37(1):102-104. 21 95% confidence interval of 1.78 - 15.38. 22 This shows a greater than three-fold increased risk, with an associated 95% confidence interval of 1.68 - 8.48, also a statistically significant finding. CHRISTOPHER G. PAULOS Mr. Paulos is a partner at Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. in Pensacola, Florida. He practices mass tort, environmental, false claim/government fraud, and catastrophic personal injury litigation..


Ms. Hazam is a partner at Leif, Cabraser, Heimann & Berstein, LLP in San Francisco, California. She represents clients in mass tort cases and qui tam actions, as well as complex class actions.


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lorida Supreme Court strikes parts of §766.106 and §766.1065 that allowed ex parte interviews with treating physicians as unconstitutional. Weaver v. Myers, So.3d , 42 FLW S906, 2017 WL 5185189 (Fla. 11-9-2017). The plaintiff filed suit as personal representative of her husband’s estate after he was allegedly killed by medical malpractice. The plaintiff sought injunctive relief as well as a declaratory judgment that the 2013 amendments to §766.106 and §766.1065, purporting to allow potential defendants to conduct ex parte interviews with a patient’s treating physicians, violated the rights to privacy and access to the courts under the Florida Constitution. The trial court granted the defendant doctor’s motion to dismiss the privacy claim, holding that the decedent’s privacy rights under the Florida Constitution had terminated on his death. Even if his rights had not terminated, the trial court found, a constitutional privacy challenge may only be brought to protect against a government entity or actor, not a private citizen like the doctor. The trial court also granted the doctor’s motion for summary judgment on the access to courts issue, on the grounds that the amendments did not add an impermissible burden on the right of access to the court. The First District Court of Appeal affirmed, holding that the authorization for ex parte interviews required by the amendments is a reasonable condition precedent to filing suit, like the presuit notice requirement itself, and did not abolish or eliminate any substantive right. In regard to the decedent’s right to privacy, the First District held that any privacy rights were waived when the personal representative filed a medical malpractice suit putting the decedent’s medical condition at issue. The Florida Supreme Court accepted discretionary jurisdiction to review the First District’s decision, and quashed it. The Court began by holding that after death, the decedent maintained an enforceable right to privacy regarding things that occurred before his death. The Court observed that “[j]ust the potential for retroactive destruction of the right to privacy robs the life of that very protection due to the chill it would cause.” According to the Court, the personal representative or administrator of the estate – and possibly any surviving spouse – has standing to enforce such a right. Considering the issue of waiver, the Court concluded that although plaintiffs may waive their privacy rights regarding relevant medical information by filing a medical

by Scott R. McMillen & Allison McMillen

malpractice suit, they do not waive their privacy rights to all medical information. The First District had erred by holding otherwise, the Court found, “to the extent unnecessary information would be open and subject to the ex parte exploration proceedings” allowed by the amendments. Applying strict scrutiny, the Court concluded that the statutory amendments violate the constitutional right to privacy. The Court found that the asserted state interests in encouraging settlement, screening out frivolous claims, and streamlining litigation were not compelling enough to outweigh the privacy interest in irrelevant medical information. Even if the interests were compelling, the Court found that the amendments in question, allowing “clandestine, secret ex parte interviews,” were far from the least intrusive means to accomplish them. The Court based its finding in part on the fact that the ex parte interviews fail to protect from accidental disclosure of irrelevant private information, since no one is present on the plaintiff’s behalf to ensure the defendants or their attorneys, insurance companies, or experts do not ask about anything irrelevant. The fact that treating physicians are not required to participate in the ex parte interviews is not enough protection, the Court reasoned, since doctors may not understand they can refuse to participate, or may feel pressured, especially if they share a liability insurance company with the defendants. The Court also found that the ex parte interviews allowed by the statute do not actually facilitate settlement, because all relevant medical information is already discoverable through the less intrusive discovery procedures already in existence. The Court spent a good deal of time rebutting the arguments in Justice Canady’s dissent, in which Justices Polston and Lawson concurred. Among other things, the Court opined that the dissent failed to recognize the reality that defendants would be in a position to conduct ex parte interviews without notice to the plaintiff, since, outside of an emergency, it is almost impossible to arrange time with a doctor within 15 days or 72 hours. The Court also rejected the dissent’s emphasis on the fact that only relevant information is permitted to be discovered during the process, finding the premise that “opposing counsel… should be the sole and exclusive arbiter in a secret, ex parte non-recorded meeting of that which is relevant” to be “deeply flawed.” Rather, the Court held, the Constitution protects against even the possibility of disclosure of such “extremely sensitive” private

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information, especially where, as here, the plaintiff would never even know the information had been disclosed, and the bell would already be rung in any case. Having determined that the statutory amendments violate the constitutional right to privacy, the Court also held that they violate the right of access to the courts under the “unconstitutional conditions doctrine” recognized by the U.S. Supreme Court in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586, 2595 (2013). Finally, the Court found that the unconstitutional portions of the statutes were severable, and struck §766.1065(3) in its entirety, as well as the last sentence of §766.106(6)(b)(5), which stated, “If the claimant’s attorney fails to schedule an interview, the prospective defendant or his or her legal representative may attempt to conduct an interview without further notice to the claimant or the claimant’s legal representative.” Florida Supreme Court holds reports from peer review conducted for hospital by outside company at attorneys’ request are discoverable under Amendment 7 (“Patients’ Right to Know”). Edwards v. Thomas, So.3d , 42 FLW S870, 2017 WL 4837631 (Fla. 10-26-2017). A patient sued a surgeon and hospital after her common bile duct was negligently severed during a laparoscopic gallbladder removal surgery. Her complaint included allegations of negligent hiring and retention by the hospital. The plaintiff served a request for production on the hospital seeking adverse medical incident reports pursuant to article x, section 25 of the Florida Constitution (often referred to as “Amendment 7,” or “Patient’s Right to Know”). The hospital objected on several grounds, and filed privilege logs regarding certain reports from “attorney-requested, external peer review” done by an outside company for the hospital. After an in camera review, the trial court agreed that the reports were privileged, but held that Amendment 7 preempted the privilege, and ordered them to be produced. The hospital filed a petition for writ of certiorari, which the Second District Court of Appeal granted. The Second District quashed the part of the trial court’s order requiring production of the external company reports, holding that they were not “made or received in the course of business” and did not meet the definition of adverse incident reports under Amendment 7, because they were not part of the hospital’s routine peer review process. The Florida Supreme Court accepted discretionary jurisdiction to review the Second District’s decision. The Court began its analysis by examining the history and purpose of the amendment, which it noted was passed in part based on voters’ frustration that allowing the medical profession to monitor itself in secret was like the “fox guarding the henhouse.” Looking to the language of Amendment 7 and its repeated use of the word “any,” the Court rejected the hospital’s argument that the amendment was only intended to abrogate the statutory limitations on discovery of adverse medical incidents that were in place at the time of its passage. While the Court agreed that the amendment was clearly intended to abrogate those existing restrictions, it held that the amendment was not limited to only those, but was also meant to eliminate all discovery restrictions on “any records… relating to any adverse medical incident.” Considering the particular peer review reports at issue, the Court found that they fell within Amendment 7’s scope, because the

external peer review committee that produced the reports was a “similar committee” as contemplated by the language in the amendment. The Court pointed out that it would be both illogical and contrary to the voters’ will to exclude peer review reports from Amendment 7’s purview just because they were in addition to the minimum required by law. The Court noted that such a holding would “provide a trap door throgh which hospitals could totally avoid their discovery obligations by outsourcing their adverse medical incident reporting to external, voluntary risk management committees separate from those required by the Florida statutory scheme.” The Court also rejected the Second District’s conclusion that the reports were not kept in the ordinary course of business because they were created by experts retained in the anticipation of litigation. As the Court observed, “[p]art of a Florida hospital’s day-to-day business is recording and addressing adverse medical incidents that might arise in daily operations, and responding to those incidents in a way that will not only improve the quality of care rendered, but also prepare the hospital for any potential litigation that might arise from such an incident.” Finally, the Court rejected the hospital’s claim that the reports were protected by the work product and attorney-client privileges, because there was no evidence any attorneyclient communications or opinion work product were involved. First District reverses dismissal for failure to comply with medical malpractice presuit requirements, holding incident sounded in ordinary malpractice. Vance v. Okaloosa-Walton Urology, P.A., So.3d , 42 FLW D2372, 2017 WL 5076898 (Fla. 1st DCA 116-2017). A patient fell at her doctor’s office after the doctor removed the step she had used to climb up on the examining table and left her to climb down on her own. The patient sued the doctor for negligence, but the trial court dismissed the case because the patient had not complied with the Chapter 766 statutory requirements for medical malpractice presuit. The First District reversed, finding that the claim did not rely on the application of the medical malpractice standard of care, and the alleged negligence was something jurors could resolve using their common experience, rather than requiring the help of an expert.

SCOTT R. MCMILLEN Mr. McMillen is the founder of McMillen Law Firm, P.A., with a principal office in Orlando. He is a former member of the Florida Bar Board of Governors, a former FJA Board member, 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 started his career as a hospital defense attorney, but has been exclusively representing medical malpractice victims throughout Florida and Georgia for over 30 years.


Ms. McMillen is proud to be a second-generation plaintiffs’ attorney, working with her father Scott McMillen to represent victims of medical malpractice. She is a Director at Large on the Board of the FJA and the Treasurer of the Central Florida Trial Lawyers Association. Ms. McMillen is also on the Editorial Board of The Florida Bar Journal and News, and a member of the Order of the Coif, the George C. Young First Central Florida American Inns of Court, and the Central Florida Association for Women Lawyers. | November/December 2017 | 31

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WARNING For Anyone with a Takata Airbag Client! by C. Richard Newsome, R. Frank Melton, II, and William C. Ourand


ight now, certain companies are feverishly working to deny Takata airbag victims their day in Court. Their method of attack is a “channeling injunction”– a bankruptcy oddity spawned by asbestos litigation. It is imperative for everyone representing individuals injured or killed by Takata airbags to actively engage in the bankruptcy and take the necessary steps to protect their clients’ rights. This article will discuss and analyze the proposed channeling injunction and other key recent events in the bankruptcy proceeding, and will then provide suggestions for protecting your clients’ rights. I. The Takata Bankruptcy and the Proposed Channeling Injunction Takata, the airbag supplier at the heart of the largest automotive recall ever conducted, declared bankruptcy this past June. Since then, there has been a flurry of complex legal actions filed throughout the world— including bankruptcy actions filed in Delaware, Japan, Canada, and elsewhere. Takata also filed a separate but related “adversary action” in which it sought, and obtained, an injunction against the prosecution of all state court cases involving a Takata airbag. The injunction has drastically extended the automatic bankruptcy stay to reach beyond Takata and include all claims against Honda and other automakers— referred to as the “Original Equipment Manufacturers,” or “OEMs” for short. Just before midnight on Friday, November 3, 2017, Takata filed its Chapter 11 Plan of Reorganization. The Plan is a 289-page document which lays out Takata’s proposed reorganization after being purchased by Key Safety Systems, a rival automotive component part supplier. The Plan specifically includes a Channeling Injunction and the complete release of all claims against Takata and any OEM which chooses to participate. To establish the groundwork for the Channeling Injunction, the Plan first calls for the creation of a trust fund for airbag inflator injury and death claims. Any OEM which chooses to pay into the trust fund gets to become a “Protected Party”—meaning that the Bankruptcy Court would provide the OEM with a complete and total release of all potential personal injury or wrongful death claims involving a defective Takata airbag inflator equipped in one of their vehicles.

If put into place, the Channeling Injunction would forcibly funnel all future airbag rupture claims involving vehicles produced by a “Participating OEM” into the trust. This means that the victims and their families would be unable to pursue a lawsuit against either Takata or the vehicle manufacturer. Instead, they would be forced to file an administrative-style claim with the trust. The trust, in turn, would provide a pre-determined amount of compensation based on a settlement value matrix. The matrix would be based on several categories of injuries, and would essentially provide a range of possible awards for each category. At the time of this writing, the settlement value matrix has not been made public, and is being prepared in complete secrecy. The vast majority of current injury victims have been provided no notice of or input in this process. II. The Channeling Injunction is Unnecessary and Lacks Valid Legal Support in this Context Channeling injunctions have been used in asbestos litigation and a few other rare “mass torts.” Their use is almost always controversial and should only occur in the most extreme of circumstances. The lawsuits against OEMs for injuries and deaths caused by Takata airbags simply do not fit those extreme circumstances. The Bankruptcy Code only contains one provision which allows for a channeling injunction. That provision is Section 524(g), and it is specific to only asbestos cases. Of course, asbestos is an incredibly unique situation. Individual asbestos manufacturers often faced tens or hundreds of thousands of lawsuits brought by those suffering from mesothelioma—an incredibly painful and lethal form of cancer. The financial toll of these claims was immense. Congress’ decision to pass 524(g) was the direct result of the unusual challenges presented by asbestos litigation. Critically, Section 524(g) also contains specific safeguards—including the requirement that a supermajority of 75 percent of the existing claimants vote in favor of the injunction.






Given that Section 524(g) is specific to asbestos, the Takata Reorganization Plan instead calls for the Channeling Injunction to be implemented pursuant to Section 105(a) of the Bankruptcy Code. Section 105(a) enables the court to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions” of the bankruptcy code. The use of Section 105(a) to enact a channeling injunction to release non-debtors is even more controversial than the asbestos-specific channeling injunction contained in 524(g). There is currently a circuit split as to whether Section 105(a) provides such authority. The Fifth, Ninth, and Tenth Circuit Courts of Appeal have all clearly held that Section 105(a) does not provide authority to release non-debtors. Other Circuits, however, have allowed for non-debtor releases under Section 105(a) under varying circumstances, applying either a case-by-case analysis or a set of specific factors. The Delaware Court overseeing the Takata Bankruptcy sits within the Third Circuit Court of Appeal. We believe a strong argument can be made that existing Third Circuit precedent forbids the use of Section 105(a) to impose the type of channeling injunction sought in the Takata Reorganization Plan. Among other things, we believe that a channeling injunction is particularly inappropriate in this case because:

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PRODUCTSLIABILITY • Certain OEMs allegedly engaged in separate and distinct tortious conduct as compared with the Debtors, including by allegedly failing to meet their own specific reporting obligations under the TREAD Act, and by allegedly concealing the dangerous defect for more than a decade. It would be unlawful and inequitable for Takata’s bankruptcy to shield those certain OEMs from liability for their own alleged independent misconduct. • The facts and circumstances of this litigation, including the number of lawsuits which have been and are likely to be filed, simply do not warrant the extraordinary relief sought. Other litigations where such injunctions have been entered, e.g. asbestos, have involved true “mass torts” with thousands or tens of thousands of lawsuits and claimants. The Takata airbag inflator injury and wrongful death litigation is nothing like the asbestos litigation. • The Channeling Injunction appears to be the product of the joint effort between the Debtors and certain OEMs to design and execute the Bankruptcy proceeding in such a manner as to shield the OEMs from liability moving forward. Evidence supporting this joint effort includes the fact that the Debtors allegedly never looked elsewhere for operational funding—including traditional DIP funding sources—and instead allegedly sought to become financially dependent upon operational funding provided by certain OEMs. • The Channeling Injunction, if ratified by the Court, would serve as a dangerous road map for future cases. Manufacturers would know that they can buy off their liability without ever having to face a civil jury by simply contributing relatively modest amounts (compared with their potential liability in civil lawsuits) to secure a channeling injunction. • The Channeling Injunction violates the constitutional rights of current and future victims of the airbag inflator defect by denying those individuals the right of access to the c.ourts. III. Protecting Your Clients’ Cases It is imperative for anyone with a Takata case to actively monitor and participate in the bankruptcy proceeding in order to safeguard and preserve their clients’ rights. For most plaintiffs’ attorneys, bankruptcy is a relatively unfamiliar area of law. There are numerous pitfalls which exist in any bankruptcy proceeding, and these hazards are compounded in this case because of the bankruptcy’s international magnitude and scope. Our firm has retained multiple bankruptcy law firms. We have retained one firm located in Japan to help coordinate filing notices of claim in the Japanese proceeding. We have also retained another firm located in Delaware to help monitor and confirm deadlines, and to coordinate filings in the US bankruptcy proceeding. This has been a complicated and time-consuming process, and is still nowhere near complete at the time of this writing. Critically, the Takata Bankruptcy Court will conduct a confirmation hearing sometime in the next few months. This is when the Court will either approve or disapprove of the Reorganization Plan, including the Channeling Injunction. To ensure a voice at the hearing, personal injury victims must timely file all required notices and proofs of claim. This will enable those individuals to object to the Reorganization Plan and the Channeling Injunction. It will also provide those victims with

an opportunity to present arguments against the legal validity and constitutionality of the Channeling Injunction. IV. Conclusion The Takata Bankruptcy has been fraught with hazards for the true victims of the airbag inflator debacle. The latest and most severe concern is the possible implementation of the unprecedented proposed Channeling Injunction which would forever close the courthouse doors to the victims. It is imperative that anyone representing clients who have suffered injuries due to a defective Takata airbag inflator be actively engaged in the bankruptcy proceeding. In re: TK Holdings, Inc., et al., Case No.: 17-11375, D.E. 1 (June 25, 2017).


Matt Chiappardi, Takata Gets Nod on Unusual Bankruptcy Financing Deal, Law360, available at takata-gets-nod-on-unusual-bankruptcy-financing-deal (Oct. 2, 2017). 2

See In re: TK Holdings, Inc., et al., Case No.: 17-50880, D.E. 117 (Nov. 6, 2017). 4 In re: TK Holdings, Inc., et al., Case No.: 17-11375, D.E. 1108 (Nov. 6, 2017). 5 Id. 6 Id. at 115-17. 7 Id. at 81. 8 Id. at 115-17. 9 Id. 10 Id. 11 11 U.S.C. §524(g). 12 Joshua M. Silverstein, Overlooking Tort Claimants’ Best Interests: Non-Debtor Release In Asbestos Bankruptices, 78 U.M.K.C. L. Rev. 1, 55 (Fall 2009). 12 11 U.S.C. §524(g)(2)(B)(ii)(IV)(bb). 13 11 U.S.C. §105(a). 14 Eric Anderson and Jay Basham, Please Release Me, Let Me Go: Eleventh Circuit Embraces Third-Party Release Standards, 34-6 ABIJ 20 (June 2015). 15 Id. 16 See In re Combustion Eng’g, Inc., 391 F.3d 190, 237 (3d Cir. 2004). 3

C. RICHARD NEWSOME Mr. Newsome is the managing partner of the Newsome Law Firm, representing consumers who have been catastrophically injured by defective products. Mr. Newsome has published dozens of articles about the law and practice of product liability litigation that have received national recognition. Mr. Newsome was the 2010 – 2011 FJA President.

R. FRANK MELTON, II Mr. Melton is the managing partner of Newsome Melton, P.A. in Orlando. He is a graduate of Stetson University and the University of Florida, Levine College of Law. Frank prosecutes products liability cases nationwide from Florida to Hawaii and everywhere in between. Frank and his firm have been at the forefront of the Takata litigation since its inception and have handled more rupture injury cases than any other firm in the nation.


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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n a recent motor vehicle accident case tried by this author, defense counsel moved for a partial directed verdict on the issue of future medical expenses, arguing that the jury could not award costs for a future hip replacement surgery because the plaintiff’s expert did not testify that the hip replacement surgery “was reasonably certain to occur in the future.” The plaintiff’s expert had testified that, “to a reasonable degree of medical probability” and “to a reasonable degree of medical certainty,” he believed the plaintiff would need a hip replacement surgery in the future as a result of post-traumatic arthritis in his hip joint as a direct result of the motor vehicle accident. When asked what those “reasonable degree” terms meant, the expert replied that there was a greater than fifty percent chance that the patient would need the surgery. The defendant’s counsel argued that the expert’s testimony did not and could not establish that the surgery “was reasonably certain to occur in the future” and, therefore, the issue of future medical expenses for that surgery should be summarily adjudicated out of the case. The argument bordered on the metaphysical: i.e., no one has a crystal ball so how can anyone say with certainty that any particular event – be it a surgery or a Mars landing for that matter ­­– will, in fact, occur in the future? While most attorneys on both sides of the aisle are well acquainted with how Florida courts treat the issue of “reasonable certainty,” it is worth a refresher and keeping in your trial bag exactly what “reasonable certainty” means when it comes to future medical expenses or future pain and suffering in a personal injury trial. Florida law restricts recovery of medical expenses to those expenses “reasonably certain” to be incurred. Loftin v. Wilson, 67 So.2d 185, 188 (Fla. 1953). See also Fla. Std. Jury Instr. (Civ.) 501.2. Although future medical expenses must be “reasonably certain” to be recovered, the medical expert does not need to testify with those buzz words. Rather, “whatever qualification is placed on the opinion by the expert (i.e., surgery is possible or likely) goes to the weight of the opinion, not its admissibility.” White v. Westlund, 624 So.2d 1148, 1150 (Fla. 4th DCA 1993) (emphasis in original). Thus, a medical expert is permitted to testify that future procedures are “likely” or “possible” as long as there is some evidence from which the jury could infer the “reasonable certainty” of future medical treatment. See Shearon v. Sullivan, 821 So.2d 1222 (Fla. 1st DCA 2002). In Shearon, the plaintiff/appellant was injured in a motor vehicle accident which resulted in her being treated by a chiropractor and neurologist. Id. at 1223. In a deposition taken before the trial started,

the neurologist “testified within a reasonable degree of medical probability that Appellant would need future medical care for her injuries.” Id. He estimated the cost of the future care and treatment to be $30,000 over a 30 year period. Id. at 1224. When asked what he meant by a “reasonable degree of medical probability,” the neurologist testified that it was a “‘51-percent standard.’” Id. On cross-exam, when asked to specify what the percentage above 51 percent was for the plaintiff needing future medical care, he answered: “‘It’s a possibility. It’s very speculative.’” Id. The witness, however, “never retracted his initial statements that Appellant’s future medical care and costs will be necessary to a reasonable degree of medical probability, and Appellant’s counsel ‘rehabilitated’ this witness on redirect examination.” Id. The trial court struck the neurologist’s testimony and refused to allow it to be played to the jury. On appeal, the plaintiff challenged the exclusion of the testimony by the trial court. Id. at 1225. The First District Court of Appeal reversed, and determined that the trial court abused its discretion in striking the testimony. Id. In so ruling, the Shearon court cited the same longstanding law as discussed above and found that the doctor’s testimony stated to a “reasonable degree of medical probability” was sufficient for the jury to consider and from which the jury could infer with “reasonable certainty” that the plaintiff would incur future medical expenses as a result of the car accident: It is a longstanding principle that only those future medical expenses that are “reasonably certain” to be incurred are recoverable. Loftin v. Wilson, 67 So.2d 185, 188 (Fla. 1953); Sullivan v. Price, 386 So.2d 241, 244 (Fla. 1980) (holding that expert medical testimony is not required as prerequisite for jury instruction on future damages, and jury could have concluded “with reasonable certainty” that consequences of injury would continue into future based on uncontradicted evidence of nature of injury, its duration, victim’s job demotion, and victim’s lack of recovery at time of trial). White, 624 So.2d at 1150. “From this, it follows that a recovery of future medical expenses cannot be grounded on the mere ‘possibility’ that certain treatment ‘might’ be obtained in the future.” Id. Thus, where “there is sufficient evidence from which a jury could infer a need for future medical treatment with reasonable certainty, an award of future medical expenses is proper.” Id. at 1150-51. Applying these rules of law to the instant trial, we conclude, in the words of the Fourth District court, that where Dr. Martin opined on direct examination that future medical care and costs would be necessary to a reasonable degree of medical probability, than “whatever qualification [wa]s placed on the opinion . . . goes to the weight of the opinion, and not its admissibility. Id. at 1151 (emphasis in original). Id. (underline emphasis added, italics in original); see also White, 624 So.2d at 1150-51 (it is the jury’s job to determine “reasonable certainty” and therefore a “medical expert may testify that future medical procedures are ‘possible’ or ‘likely’ and need not phrase an opinion in terms of such surgery or treatment being ‘reasonably necessary’”). Defendant cited two cases in their directed verdict motion, neither of which impact the unequivocal holding in Shearon. However, without a

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EVIDENCE quick reference to reorient a trial court on the definition of “reasonably certain”, it is always prudent to have in the trial notebook or within an arm’s length reach when putting the medical expert on the stand and at the close of the evidence the Shearon case. The first case cited by the defendant’s counsel was Pruitt v. PerezGervert, 41 So.3d 286 (Fla. 2d DCA 2010). The following line from Pruitt was cited to support the case of needing to testify to metaphysical certainty as to a future event: “Where a plaintiff seeks damages for future medical expenses, only medical expenses that are reasonably certain to be incurred in the future are recoverable.” Id. at 288. In that case, the Second DCA remitted a future medical expenses award but not on the basis that the expert “reasonable certainty” language was inadequate. Rather, the jury in Pruitt awarded a dollar amount for future medical expenses well beyond the dollar figures reflected in the evidence of future medical care estimates the jury heard from the plaintiff’s expert. Id. at 288-89. Accordingly, the Second DCA held that the amount should have been remitted to the amount reflected in the expert’s testimony. Id. However, the lesson was learned that a single quote supporting the “metaphysical certainty” argument can be highly misleading if it is not quickly dismantled with the detailed analyses in cases such as Shearon and White. The second case cited was the opinion of McIntyre v. United States, 2016 WL 4702417 (M.D. Fla. 2016) (Hodges, J.) where the trial judge recited the “reasonable certainty” language and found that the evidence was not sufficient to persuade him that the future medical expense was “reasonably certain” to occur. The holding in McIntyre is of no moment because, in that Federal Torts Claim Act case, the district judge sat as the trier of fact and resolved issues of weight and credibility which in Florida personal injury cases is the sole province of the jury. Id. at *5. Further, the critical factor for the McIntyre court was that the trigger date the expert testified would likely implicate the need for the additional surgery was likely right at the end of the plaintiff’s life expectancy and, therefore, resolving an issue of fact, the trial court found that the “reasonably certain” burden had not been carried by the plaintiff. Id. at *3. Another district judge in the same district court, not sitting as the trier of fact but considering evidentiary objections to the plaintiff’s evidence of future medical expenses, cited the Shearon and White cases and correctly defined “reasonable certainty” as equating to those “future medical expenses [which] will more probably than not be incurred” and, accordingly, testimony that testimony about future medical care being “likely” or “possible” is allowed to satisfy the “reasonable certainty” standard. Frost v. McNeilus, 2015 WL 773352, *3 (M.D. Fla. 2015) (Bucklew, J.). In this author’s trial, the trial court found that the plaintiff’s expert had met the “reasonable certainty” standard through the evidence relied upon and the opinion testimony he gave about the need for the future surgery. That brush with the “metaphysical certainty” argument, however, was enough for this author to create a “reasonable certainty” checklist, which include the following: 1. Define the basis for the opinion. Make sure the expert expressly and clearly identifies the medical facts (radiological findings, consistency of pain in medical records, subjective complaints matching objective findings, etc.) which support his opinion relating to the need

for future medical expenses resulting from the accident. Don’t breeze through those medical facts just to lay the foundation for the opinions as those facts will also be a significant part of the damages for past medical expenses and non-economic damages. 2. Define the reasonable certainty. To give comfort to those judges who are used to hearing “reasonable degree of medical certainty” or “reasonable degree of medical probability,” (A) use those terms and (B) have the expert testify to what he means when using of those terms: “more likely than not to occur in the future” or “greater than a fifty percent chance of occurring in the future.” A good way of doing this is to have the expert riff and give the concise argument of why his opinion is so. To do this, the expert will repeat his basis for his opinion and then lay out what medical care will be needed in the future, e.g.: “Based upon the fact that he has had pain in that hip since the wreck, and there is not one record of a hip complaint before the wreck, and based upon the post-wreck films which show early onset of arthritis in this young man, which will never improve on its own and will only get worse with time, and based upon the fact that the only ‘cure’ for arthritis in a joint is to remove that joint and replace it with an implant, and based upon the fact that that injury to his hip is the direct result of the motor vehicle accident, it is my opinion to a reasonable degree of medical certainty – more likely than not – Mr. Jones will need to a total hip replacement surgery in the future.” 3. Define the future. After having the expert testify to a reasonable degree of medical certainty that the injury is permanent, use the mortality tables to establish what the predicted lifespan is for the plaintiff and make sure the expert testifies that, more likely than not, the need for the future medical care will arise before the end of that predicted lifespan. 4. Define the costs. Have the expert (A) testify to his knowledge or familiarity with the cost of the medical care in the area where the plaintiff lives and (B) state the costs or range of costs for the medical care that he believes, more likely than not, will be needed by the plaintiff in the future. 5. Define the law. In the event the “metaphysical certainty” argument is presented, have Shearon and White within arm’s length so that you can get the argument out of the metaphysical and back into the world of actual Florida law on evidence.


Mr. O’Brien is a senior shareholder at Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. He is board certified by The Florida Bar in civil trial practice. Mr. O’Brien tries complex environmental and pharmaceutical mass tort cases and also maintains a local personal injury trial practice. Mr. O’Brien received his B.A. with Honors from the University of Virginia in 1992. After graduating with Honors from the University of Florida Fredric G. Levin College of Law in 1995, Mr. O’Brien worked for two years as a law clerk for the Honorable William T. Moore, Jr., United States District Judge for the Southern District of Georgia.

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fter a hard-fought trial, there is a knock on the door from the room where the jury has been deliberating for just long enough that you think a verdict is about to be returned. However, it is not a verdict, but a written question from the jury: “May we have the transcript of the testimony of defendant’s expert witness?” Not that many years ago the standard response to a jury request during deliberations for a copy of a transcript or a read-back of certain testimony was only that “the jury should rely on its collective memory of the evidence.” Trial courts in years past flatly refused to provide the requested testimony. That law has changed drastically over the last three decades. Some older lawyers are still surprised to learn that the refusal to read-back requested excerpts of trial testimony can be reversible error. This evolving body of law developed even further in the Second District’s November 15th decision reversing a $13 million judgment in an Engle progeny tobacco case, where the trial court merely discouraged the jury from requesting read-backs, rather than flatly refusing such a request. The Second District’s recent decision in Philip Morris United States v. Duignan, No. 2D15-5055; 2017 Fla. App. LEXIS 16806 (Fla. 2d DCA Nov. 15, 2017) seems to adopt a standard whereby any jury request about the possibility of rehearing evidence must be met with offers to read-back portions of witness testimony. There is no Florida Rule of Civil Procedure pertaining to requests for testimony to be read back during deliberations. On the other hand, the Rules of Criminal Procedure provide a detailed roadmap of how to handle jury requests for review of testimonial evidence, which includes the requirement that the jury be told of its right to ask for read-backs whenever it requests copies of transcripts. Fla. R. Crim. P. 3.410 provides: (a) If after they have retired to consider their verdict, jurors request additional instructions or to have any testimony read or played back to them they may be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read or played back to them. The instructions shall be given and the testimony presented only after notice to the prosecuting attorney and to counsel for the defendant. All testimony read or played back must be done in open court in the presence of all parties. In its

discretion, the court may respond in writing to the inquiry without having the jury brought before the court, provided the parties have received the opportunity to place objections on the record and both the inquiry and response are made part of the record. (b) In a case in which the jury requests to have the transcripts of trial testimony, the following procedures must be followed: (1) The trial judge must deny the requests for transcripts. (2) The trial judge must instruct jurors that they can, however, request to have any testimony read or played back, which may or may not be granted at the court’s discretion. (3) In cases in which jurors make only a general request for transcripts, as opposed to identifying any particular witness’ testimony that they wish to review, the trial judge must instruct jurors that, if they request a read or play back, they must specify the particular trial testimony they wish to have read or played back. (c) If, after being properly instructed in accordance with subdivision (b), the jurors request a read or play back of any trial testimony, the trial judge must follow the procedures set forth in subdivision (a). Id. (Emphasis added). The current version of the Rule of Criminal Procedure evolved from an earlier version of the rule containing only a simple sentence informing the jury that it may ask for read-backs of testimony during deliberations, and giving the trial court discretion to grant or deny such requests. That simpler version of the rule was in effect at the time of the leading case on readbacks of trial testimony in Florida: Hazuri v. State, 91 So.3d 836 (Fla. 2012). In Hazuri, a jury in a criminal trial sent the judge a note asking to see trial transcripts. The defendant argued that the proper response to the request was to tell the jury that transcripts were not available but that it could have read-back to it whatever testimony it wanted. The trial court disagreed and told the jury only that transcripts were not available and that it should rely on its “collective recollection” of the evidence to decide the case. Id. at 839.

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Mr. Hazuri appealed his subsequent conviction, arguing that the trial court erred when it refused to tell the jury that it could request to have parts of the transcript read back. After the Third District affirmed (Hazuri v. State, 23 So.3d 857 (Fla. 3d DCA 2009)), the Florida Supreme Court accepted jurisdiction, quashing the Third District’s decision and holding that the trial court abused its discretion in failing to inform the jury of its right to request a readback. 91 So.3d at 846-47. The Supreme Court in Hazuri began by observing that the jury did not request a read-back – it only requested the physical transcripts – but decided that the trial court was still required to inform the jury of the possibility of a readback. Id. at 845. It connected this holding to the core function of the jury, explaining that “the role of a jury as a factfinder is of utmost importance” and that “a jury cannot properly fulfill its constitutionally mandated role if it cannot recall or is confused about the testimony presented in a case.” Id. Because “[a] jury is composed of laypersons often unfamiliar with legal terms of art,” the court explained, “there should be no magic words required for a read-back request.” Id. “Failing to require further instruction concerning a read-back after a

jury has requested transcripts leaves the jury without the means to refresh its memory of witness testimony-testimony that could be critical to the outcome of the verdict.” Id. The court thus adopted “the following two rules: (1) a trial court should not use any language that would mislead a jury into believing read-backs are prohibited, and (2) when a jury requests trial transcripts, the trial judge should deny the request, but inform the jury of the possibility of a read-back.” Id. at 846. “A trial judge can respond to a request for transcripts in the following manner: ‘Transcripts are not available, but you can request to have any testimony read back to you, which may or may not be granted at the court’s discretion.’” Hazuri, 91 So.3d at 846. In Duignan the jury asked the court to direct them to the transcript of the deposition of the decedent Douglas’ brother, Dennis, portions of which had been read into the record. Dennis Duignan testified that he and his brother referred to cigarettes using slang terms including “cancer sticks” and “coffin nails.” Duignan, supra, at *6. He also testified

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about a conversation with his brother that occurred sometime in the 1970s, during which Douglas said that his doctor had told him “that if he didn’t quit smoking, he’d be dead in five years.” Id. When Dennis asked his brother whether he planned to quit, Douglas replied that he did not plan to quit because he liked smoking. Id. The Plaintiff questioned both the Dennis’ veracity and the timing of the alleged conversation. “Both sides addressed it in opening statements and closing arguments.” Id. at *7. During a discussion with counsel over a potential response to the question about where to find the transcript of Dennis’ deposition, the parties and court considered whether and how to advise the jury about the possibility that the deposition testimony could be read-back. The trial court expressed concern that allowing a read-back of Dennis Duignan’s testimony would open a “Pandora’s box” and perhaps give “undue influence” to that testimony. Id. at * 10. The trial court proposed to instruct the jury that “[t]estimony is not generally read back to a jury. There is a possibility under some circumstances.” Philip Morris and Reynolds objected to that instruction and proposed simply advising the jury that a read-back was possible. The court declined to inform the jury that a read-back was possible. It brought the jury in, explained that no transcript was available, and told the jury as follows: [T]here’s sort of a magic that happens with the six of you putting your recollections together, it’s called collective recollection, and you are urged, in regard to all testimony in the case, to use your collective recollection. It is not impossible to read testimony back to a jury, but it is not generally done. And part of that is to—so that no witness’s testimony gets a—more focus or attention than anybody’s, gets undue emphasis that way. Id. at ** 10-11 (emphasis added). The jury then returned a verdict finding Douglas Duignan was a member of the Engle class and n the Estate’s favor on all claims. It awarded $6,000,000 in compensatory damages and awarded punitive damages of $3.5 million against Philip Morris and $2.5 million against Reynolds. Because the jury found for the Plaintiff on intentional tort claims, the compensatory award was joint and several. Citing Hazuri, the Second District reversed the eight-figure judgment for the plaintiff, holding as follows: We review a trial court’s decision regarding readbacks of trial testimony for abuse of discretion, State v. Barrow, 91 So.3d 826, 835 (Fla. 2012), and we also apply that standard to review a trial court’s response to a jury question, Cannon v. State, 180 So.3d 1023, 1036 (Fla. 2015). The trial court’s response in this case—that although a readback was “not impossible,” it “is not generally done” and that the jury should rely on its “collective recollection”—was an abuse of discretion because it was calculated to prevent the jury from asking for a readback and thereby interfered with

the jury’s ability to discharge its duties as the finder of fact in this case. Id. at * 16. Although recognizing that Hazuri is a criminal case, the Second District held that “a trial judge in a civil case must, to carry out his or her responsibility to order and facilitate the jury’s deliberations, enjoy a similar discretion about readbacks to that given a trial judge in a criminal case under rule 3.410.” Id. at * 17. See also Broward Cty. Sch. Bd. v. Ruiz, 493 So.2d 474, 479-80 (Fla. 4th DCA 1986) (noting that no rule of civil procedure governs readbacks but analogizing to rule 3.410); see also Fla. Std. Jury Instr. (Civ.) 801.2, note 1 (“In civil cases, the decision to allow read-back of testimony lies within the sound discretion of the trial court.”). Holding that “[a] jury in a civil case is thus no more able to ‘properly fulfill its constitutionally mandated role if it cannot recall or is confused about the testimony presented,’ see Hazuri, 91 So.3d at 845, than a jury in a criminal case is,” the court saw “no reason why those rules should not be applied in civil cases as well.” Duignan, supra at ** 17-18. The court held as follows: In this case, the trial court’s response to the jury note seeking a transcript of Dennis Duignan’s testimony, at a minimum, violated Hazuri’s rule that a trial court should not use language that would mislead a jury into believing that a readback is prohibited. To be sure, the trial court did not explicitly say that a readback was prohibited; indeed, it acknowledged that a readback was “not impossible.” But whether the trial court did or did not say that a readback was prohibited is not the question Hazuri asks. The question is whether what the trial court did say “would mislead” a jury into believing that a readback was prohibited. Hazuri, 91 So.3d at 846; see also Roper v. State, 608 So.2d 533, 535 (Fla. 5th DCA 1992) (finding error where “the trial judge’s response to the jury’s question may well have led the jury to conclude” that a readback was prohibited), approved by Hazuri, 91 So.3d at 847. The focus, then, is on what the likely effect of the trial court’s statements on a reasonable jury might have been. Here, the answer is that a reasonable jury would have thought a readback prohibited. Id. at ** 18-19. The trial court’s response to the jury’s question, combined with its failure to inform the jury that it had the right to at least ask for the testimony to be read-back, “in essence and effect, informed the jurors ‘that their only recourse was to rely upon their “collective recollections and remembrances” as to’ Dennis Duignan’s testimony because transcripts were unavailable and a readback would not be forthcoming. See Roper, 608 So.2d at 535.” That was error, according to the Second District. (citing Avila, 781 So.2d at 416 (reversing where the trial judge’s response to transcript request “may have confused the jury as to whether a readback of testimony was permissible”); Biscardi v. State, 511 So.2d 575, 581 (Fla. 4th DCA 1987) (reversing where “the judge’s words may reasonably have conveyed to the jurors that to ask for … rereading of testimony would be futile”).

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The tragedy of Douglas’ Duignan’s needless death from the poison of cigarettes was compounded by the tragedy of the jury’s fair verdict being taken away after a lengthy and expensive trial. The parties and the trial court were treading on new ground here, and even though the standard of review of such decisions is abuse of discretion, the case will have to be tried all over again. Other trial lawyers should use the misfortune of the Duignan family and his legal team as a warning that the law has radically changed when it comes to jury requests to have testimony – whether presented live at trial or by deposition – read-back during deliberations. CIVIL PROCEDURE CASE SUMMARIES Defense Ex-Parte Interviews with Treating Physicians Unconstitutional. In Weaver v. Myers, 42 FLW S906, No. SC151538; 2017 Fla. App. LEXIS 2282 (Fla. 11-9-17), the Supreme Court of Florida invalidated as unconstitutional the provision of the medical malpractice pre-suit statutory procedure that required a claimant’s attorney to schedule an interview by defense representatives with treating physicians, and provided that “[i]f the claimant’s attorney fails to schedule an interview, the prospective defendant or his or her legal representative may attempt to conduct an interview without further notice to the claimant or the claimant’s legal representative.” Id. at **5-6 (emphasis added). The court invalidated that the provision, which “requires a medical malpractice claimant to expose healthcare providers to such clandestine ex-parte interviews not only with the prospective defendant but also with a broad set of parties including related insurers, expert witnesses, attorneys, and support staff.” Id. at *8. The court held that the provision unconstitutionally violated claimants’ and decedents’ privacy rights. Thanks to Phil Burlington and Adam Richardson for contributing to this fine opinion through an FJA Amicus Curiae Brief. Evidentiary Hearing Required Where Rule 1.540(b)(3) Motion Establishes Elements of Fraud. Recognizing that “a rule 1.540(b) (3) motion must clearly and concisely set out the essential facts on the fraud, and not just legal conclusions,” the Fourth District in Kohl v. D’Ambrosio, 42 FLW D2108, No. 4D15-3088; 2017 Fla. App. LEXIS 13912 (Fla. 4th DCA 10-4-17), held that it is reversible error to deny an evidentiary hearing where such a motion sufficiently pleads the facts constituting fraud. The court gave no deference to the trial court’s ruling, holding that, while “[o]rdinarily, a trial court’s order on a motion from relief from judgment is reviewed for abuse of discretion . . ., when the issue raised is one of pure law and interpretation of the Florida Rules of Civil Procedure, we have de novo review.” Id. at *3. So viewed, all 1.540 motions satisfying the pleading requirements for fraud require a full evidentiary hearing. Trial Court Has Power to Grant Rehearing and Amend Final Judgment Without Any Motion. Fla. R. Civ. P. 1.530 provides parties with the opportunity to move for new trial following a jury verdict, or to seek rehearing of a judgment entered in an non-jury matter, within fifteen days of rendition of that judgment. In Bucsit v. Bucsit, 42 FLW D2211, No. 1D17-801; 2017 Fla. App. LEXIS 14723 (Fla. 1st DCA 10-18-17), the court affirmed an amended final order entered “without notice to, or input from, either party” because Fla. R. Civ. P. 1.530(d) permits “the court of its own initiative [to] order a rehearing or a new trial for any reason for which it might have granted a rehearing or

retrial on motion of a party.” Id. at *2. (Emphasis added). As long as the sua sponte amendment to the judgment was accomplished within the same fifteen-day period as is provided for motions for new trial or rehearing, the court’s amendment of its judgment is permissible without such a motion. Temporary Injunction Must Contain Specific Findings. In Orange County, Fla. v. Fla. Ass’n for Constitutional Officers, 42 FLW D2177, No. 5D17-252; 2017 Fla. App. LEXIS 14418 (Fla. 5th DCA 10-13-17), the Fifth District reversed a trial court’s order staying implementation and enforcement of certain amendments to the county’s charter. Holding that the stay was the functional equivalent of a temporary injunction, the Fifth District reversed the injunction for failure to contain requisite findings. The court cited Fla. R. Civ. P. 1.610, which requires that “[e]very temporary injunction granted without notice shall . . . state findings by the court why the injury may be irreparable, and give the reasons why the order was granted without notice . …” That rule also prohibits such temporary injunctions “unless a bond is given by the movant in an amount the court deems proper.” In the absence of a bond and the requisite findings, a temporary injunction will be reversed on appeal. Costs Not Recoverable Under Section 57.105(1). Trial lawyers litigating motions for sanctions under §57.105 should be aware of a decision by the Second District in Assimakopoulos v. AssimakopoulosPanuthos, 42 FLW D2232, No. 2D15-4205; 2017 Fla. App. LEXIS 14946 (Fla. 2d DCA 10-20-17). That was a case in which the court reversed awards of two attorney’s fees experts’ witness fees awarded in connection with sanctions imposed under Section 57.105, because the statute only authorizes awards of attorney’s fees, and expert witness fees (even those incurred by attorney experts) are costs, not fees. The court certified conflict with Martin County Conservation Alliance v. Martin County, 73 So.3d 856 (Fla. 1st DCA 2011) and Smith v. Viragen, Inc., 902 So.2d 187 (Fla. 3d DCA 2005), in which the courts had affirmed awards of attorney’s fees and costs under §57.105. Trial practice and the rules pertaining to our profession are constantly evolving, and it is a full-time job to keep up with the procedures we all need to follow to recover decent verdicts and keep them on appeal. We can never avoid all the pitfalls of our state and federal civil procedural rules and trial practice. All we can do is: Keep Tryin’!


Mr. 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, the 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. | November/December 2017 | 43

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THAT INVOKE OTHER FACT FINDERS AND AUTHORITIES by Philip M. Burlington, Barbara Green and Christopher V. Carlyle


he purpose of closing argument is to help the jury understand the evidence presented in the case and apply the law to it. Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1028(Fla. 2000). Just as it is improper for counsel to offer their own personal opinion of the case, the evidence or a witness, Id., it is improper for counsel to invoke other fact finders or authorities in support of their position. Such an argument can invoke the authority of a wide variety of fact finders - either arising out of the same case, such as a traffic court, a grand jury, an investigating police officer, or a jury in a prior trial in that case; or a fact finder in an ostensibly similar case, such as a jury that reached a verdict or rejected a particular expert’s testimony in another case. In either situation, such arguments are inappropriate and often are prejudicial enough to support reversal. In large part, the reason this kind of argument is improper is because evidence of findings by other fact finders usually is improper, and closing argument must be based on the evidence in the present case and on reasonable inferences from it. Explaining the inadmissibility of evidence of the results of prior trials in which a defense CME doctor had testified, the Third District explained, first, that it would introduce collateral issues into the trial about what each prior trial was about and what the evidence was in those cases, but, more importantly, any information as to prior verdicts has the inevitable tendency of causing the jury in the present case to defer to decisions made in a previous one and thus to delegate the uniquely non-delegable duty of reaching its own independent conclusions. Thus, a whole series of cases has found reversible error in the admission of evidence that a previous “fact finder” - whether an investigating police officer, a traffic court, or a jury in a previous trial in the same case, reached a conclusion on an issue in the present trial.

Secada v. Weinstein, 563 So.2d 172, 173 (Fla. 3d DCA 1990). Accord, Ventimiglia v. TGI Fridays, Inc., 980 So.2d 1087 (Fla. 4th DCA 2007) (reversible error for defense counsel, during cross examination of

plaintiff’s expert, to tell jury that a jury in a prior case in which the expert testified came back with a defense verdict in 20 minutes). Additionally, the previous fact finder may have made its findings under a different burden of proof than the burden applicable at trial. In Soto v. McCulley Marine Services, 181 So.3d 1223 (Fla. 2d DCA 2015), the court found it was reversible error to admit evidence that the captain of the defendant’s tugboat did not receive a citation from the Florida Fish and Wildlife Conservation Commission. The court pointed out that: The negligence standard employed by juries is not the same as the standard used by individual law enforcement officers when deciding whether to write a ticket. 181 So.3d at 1226. See also Hotelerama Assocs. Ltd. v. Wilcox, 593 So.2d 532, 533 (Fla. 3d DCA 1992) (Cope, J. concurring) (noting that statutory presumptions in workers’ compensation cases create different burden of proof ) . If evidence of such results is improper, any allusion by counsel in closing argument to such results also must be improper. In Albertson v. Stark, 294 So.2d 698 (Fla. 4th DCA 1974), the court held that a new trial was required because defense counsel told the jury, “also, if my lady had been charged with a driving violation you better believe you would have heard about it in this courtroom; you haven’t heard anything about it, she wasn’t charged.” 294 So.2d at 699. Reversing for a new trial, the court explained: Common sense (and experience as well) tells us that to the average juror the decision of the investigating police officer, i.e., whether to charge one driver or the other with a traffic violation based upon the result of his investigation, is very material to, if not wholly dispositive of, that juror’s determination of fault on the part of the respective drivers. Id.

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Invoking prior fact finders in the same case or involving same parties

the state decided not to prosecute a witness who is not a defendant in the case. Wicklow v. State, 43 So.3d 85, 88 (Fla. 4th DCA 2010)

In a variety of settings, courts have held that it was improper for counsel to inform the jury that a previous decision maker in the same case had reached a particular conclusion.

While arguments about prosecutorial decisions most often occur in criminal cases, some attorneys also have attempted to use them in civil cases.

Several cases, like Albertson, have held that a new trial was required because of evidence or argument that a party did or did not receive a ticket. See, e.g., Vantran Ind., Inc. v. Ryder Truck Rental, Inc., 890 So.2d 421, 425-26 (collecting cases). Courts often reverse even when there is no direct testimony or argument, but only an inference, that a party did or did not receive a citation. For example, in Moore v. Taylor Concrete & Supply Co., 553 So.2d 787 (Fla. 1st DCA 1989), the court held that a new trial was required where the trial court overruled the plaintiff’s objection to questioning suggesting that the defendant’s driver was not charged in the accident, even though the officer testified “I don’t generally cite everybody for everything.” The court reasoned that, when the trial court overruled the objection, it left the jury free to infer that the truck driver was not charged, and that, therefore, the plaintiff was charged. 553 So.2d at 791. The court stated, “It is well settled that questions or allusions which suggest that a driver has or has not been charged with a traffic violation in connection with an accident constitute prejudicial error, which in appropriate circumstances will warrant a new trial.” 553 So.2d at 790.

In Kelley v. Mutnich, 481 So.2d 999, 1001 (Fla. 4th DCA 1986), the court held that it was improper to argue that the defendant had been arrested in connection with the incident underlying a civil case. However, the court found it harmless because the defendant already had told the jury that he had been charged with criminal trespassing, but that the charges had been dismissed. Therefore, the court reversed an order granting new trial on that basis. See also Baro v. Southeast First Nat’l Bank, 406 So.2d 532, 533 (Fla. 3d DCA 1981) (no error to refuse to allow plaintiff in libel suit to testify she was acquitted of alleged crime, where it was plaintiff who brought up evidence that she was prosecuted).

Similarly, in White v. Consol. Freightways Corp., 766 So.2d 1228 (Fla. 1st DCA 2000), the court held that the trial court should have granted a mistrial. Defense counsel, in opening statement, told the jury that the highway patrolman would testify that he “talked to everyone who was there; I think the evidence will show that no one claimed that [defendant’s truck driver] had anything to do with this accident at the scene of the accident,” and that the driver would testify that he did not find out anyone was blaming him until “long after, months after it occurred.” 766 So.2d at 1229-1230. The court observed that “the only reasonable inference to be made from such statements is that the [defendant’s] driver was not charged with any traffic infraction in connection with the accident.” 766 So.2d at 1233. In Elsass v. Hankey, 662 So.2d 392 (Fla. 5th DCA 1995), defense counsel argued to the jury, “I didn’t hear [the investigating officers] say it was [defendant’s] fault.” The court found this argument “especially egregious” because, in fact, the officers did issue a citation to the defendant, but the defendant succeeded in having that evidence excluded. The court held that the argument was not harmless. The attorney in Elsass violated the fundamental rule that it is improper to make arguments that are not based on evidence or on reasonable inferences from the evidence. Murphy, supra. Arguments relying on other fact finders can arise in many contexts. For example, in criminal cases, it is improper to argue that the jury should give any weight to a grand jury’s decision to indict a defendant, or to a prosecutor’s decision to charge the defendant with a crime. See, e.g., Reichman v. State, 581 So.2d 133, 139 n.12 (Fla. 1991); Riley v. State, 560 So.2d 279 (Fla. 3d DCA 1990); Brinson v. State, 153 So.3d 972, 975 (Fla. 5th DCA 2015). It is also improper to tell the jury that the defendant was convicted in a prior trial. Duque v. State, 498 So.2d 1334 (Fla. 2d DCA 1986). Likewise, it is improper to tell the jury that

Similarly, in Republic Life Ins. Co. v. Valdes, 348 So.2d 566, 570 (Fla. 3d DCA 1977), an action on an accidental death policy, the court held that it was improper for counsel to tell the jury in opening statement that the son of the deceased had pled “no contest” to manslaughter charges involving the underlying incident. The court held there was no reversible error because the no contest plea did not exonerate him, and because the court instructed the jury that the statements of counsel are not evidence. It should be noted that there are certain statutory exceptions to the rule that a criminal conviction is not admissible in a civil case. See §775.089(8), Fla. Stat. (giving collateral estoppel effect to convictions for offenses giving rise to restitution). Where evidence is properly admitted under such statutes, it should be proper to discuss it in closing argument under the general rule that closing argument may discuss the evidence and reasonable inferences from it. See generally, Murphy, supra. It is also improper to inform the jury in closing argument about a determination by an administrative law judge about an issue in the case. In Nodzak v. Brinson, 490 So.2d 1310 (Fla. 4th DCA 1986), the plaintiff testified that she received disability payments from the state of Florida, and also received Social Security Disability payments as the result of a decision by an administrative law judge. Plaintiff’s counsel then argued in closing, “she’s getting total disability from social security, she’s been qualified for that, that’s been determined and the State of Florida determined that she’s totally disabled.” The court held that, while both the evidence and argument were improper, they were harmless in that particular case because of the overwhelming evidence of the plaintiff’s debilitating injuries. “How the mention of an administrative judge in one breath could distract the jury from all they had heard and seen of devastating head and bodily injuries or otherwise prejudice the defendant in this case eludes us.” 490 So.2d at 1313. The court chastised the plaintiff’s lawyer, however, and cautioned that it could be “overkill” leading to a new trial in another case. Counsel should not use Nodzak as a license to introduce such evidence or to make such arguments, which the Court clearly held were improper. Courts quite often find this kind of error harmful, as discussed in more detail below. | November/December 2017 | 45

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CLOSINGARGUMENT It is also improper to tell the jury that the judge already has formed an opinion about the case. In Matthew v. St. Petersburg Auto Auction, Inc., 190 So.2d 215 (Fla. 2d DCA 1966), the plaintiff’s counsel tried to respond to a defense argument that plaintiff’s treating chiropractor caused his injury: The Court is going to read you a rule of law that says that this chiropractor business is no defense at all in this case. ... If Mr. Matthews thought that he was going to get good care and treatment and he went to a chiropractor as a grown man and he thought the chiropractor was going to give him good care – in other words, they can’t hide behind mere speculation that the chiropractor did this. ... The chiropractor is a phony defense, and the law says so, and if you don’t believe me, you ask Judge Smith. He will read it to you, because he told me so about ten minutes ago in his chambers. 190 So.2d at 216. The court found this comment to be “manifestly unfair” and affirmed the trial court’s order granting new trial. See also Young v. State, 137 So.3d 532 (Fla. 4th DCA 2014) (improper to argue to jury that judge already decided that lineup was reliable by denying motion to suppress it). Sometimes, if rarely, a party can open the door to evidence or argument about a prior fact finder. In Kenet v. Bailey, Hunt, Jones & Busto, 785 So.2d 515 (Fla. 3d DCA 2001), the court found that the defendant, an attorney, opened the door to evidence of a pending, open Florida Bar investigation into his dispute with the plaintiff, by misleadingly stating that there had never been a “probable cause” finding against him in any Bar proceeding, including that case. Analogizing to the traffic citation cases, the court said that, ordinarily, the prejudicial effect of the evidence would have outweighed the probative value. However, the defendant’s misleading testimony made “the truthfulness of [the defendant’s] protestations ... particularly relevant.” 785 So.2d at 517. Compare Ryder Truck Rental, Inc. v. Johnson, 466 So.2d 1240, 1241 (Fla. 1st DCA 1988) (evidence of plaintiff’s driving record as a whole on issue of earning capacity did not open door to evidence of whether he was charged in accident at issue). See generally, Seguin v. Hauser Motor Co., 350 So.2d 1089 (Fla. 4th DCA 1977) (invoking the Florida Bar and the court in support of counsel’s opinion by arguing “I am an officer of the Court. If I lie to you, ... they would take my license away ...”). Invoking prior fact finders in a different case Attorneys sometimes will improperly try to persuade jurors by informing them about jurors’ resolution of other cases that they contend are similar in some way. The classic case is Mallory v. Edgar, 128 Fla. 812, 175 So.863 (Fla. 1937). There, in an action for alienation of affection, plaintiff’s counsel told the jury that defense counsel had obtained a verdict of $45,000 in a similar suit. Defense counsel objected, and asked for an instruction “that such remark has nothing to do with the issues involved in this case and they should not consider such remark.” The trial court refused. The Florida Supreme Court held that this error, along with others, required reversal.

Some courts have characterized such arguments as “comparative verdict” arguments. One such case, Wright & Ford Millworks, Inc. v. Long, 412 So.2d 892 (Fla. 5th DCA 1982), was a personal injury case involving a crush injury to the plaintiff’s foot. The plaintiff’s counsel made reference to a then-recent $1.5 million defamation verdict obtained by comedian Carol Burnett and argued, “Maybe we ought to ask Carol Burnett, you know. We’ll wipe the record clean and all you have to do is let the motor drop on your foot and crush your foot. Will you trade that for a million and a half dollars?” 412 So.2d at 893. The trial court overruled the defense objections to this argument. Reversing, the court stated that, while “attorneys are allowed wide latitude” in closing argument, the argument “should have some logical nexus in deduction or analogy to the evidence and the facts of the instant case.” Prior reported appellate opinions in other cases also are improper topics for closing argument. In Allison Transmission, Inc. v. J.R. Sailing, Inc., 926 So.2d 404 (Fla. 2d DCA 2006), a Lemon Law case concerning a noisy transmission, plaintiff’s counsel referred to an appellate opinion in a Lemon Law case in which the court reversed a directed verdict in favor of the manufacturer. The court in the prior case had found that the plaintiff’s testimony that a noise made by the transmission was “annoying” and “unacceptable” was sufficient evidence of substantial impairment of use under the Lemon Law. In Allison Transmission, the trial court, over objection, allowed the plaintiff’s attorney to use the prior case to argue that “annoying and unacceptable” was the standard for determining a violation of the Lemon Law. The closing argument was exacerbated by an incorrect jury instruction. The court held that a new trial was required. Preservation of Error Evaluation of every improper argument depends on the context, of course, but courts have found that “comparative verdict” arguments do not constitute fundamental error. In Murray-Ohio Mfg. Co. v. Patterson, 385 So.2d 1035 (Fla. 5th DCA 1980), a case about a defective tractor, the court found that references in closing argument to cases about other defective products such as the Ford Pinto, were “not so inflammatory as to destroy the defendants’ right to a fair trial.” 385 So.2d at 1036. Similarly, in Div. Of Corrections v. Wynn, 438 So.2d 446, 449 (Fla. 1st DCA 1983), the court found references to large verdicts in recent widely publicized cases did not constitute fundamental error. In Albertson v. Stark, supra., the plaintiff objected to the argument that there was no evidence the defendant was cited for the accident, and the objection was sustained, but the plaintiff did not move for mistrial. Nevertheless, the court found the argument so prejudicial that a new trial was required, in part because the evidence of the defendant’s negligence was clear and there was little evidence of contributory negligence. Albertson was decided long before the Supreme Court clarified the requirements for preservation of error in closing argument in Murphy. Therefore, it is important to keep in mind the current standards for preservation of error and, if the objection is sustained, to timely move for mistrial.

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Harmfulness Despite the finding of harmlessness in Nodzak, supra., and Valdes, supra., it is very unusual for courts to find allusions to other fact finders harmless in civil cases, especially in the “who got the ticket” cases. Courts frequently have found curative instructions to disregard the evidence or argument inadequate to cure the prejudice. For example, in Vantran Ind., Inc. v. Ryder Truck Rental, Inc., 890 So.2d 421 (Fla. 1st DCA 2004), the court held that a mistrial should have been granted, where the highway patrolman testified that “no tickets were written,” even though the trial court instructed the jury to disregard the testimony. 890 So.2d at 423-424. While there is no per se rule requiring a mistrial, Budget Rent a Car Sys., Inc. v. Jana, 600 So.2d 466, 468 (Fla. 1992), “when liability is at issue, curative instructions are usually insufficient to cure the error.” Diaz v. FedEx Freight East, Inc., 114 So.3d 224, 227 (Fla. 5th DCA 2012).

Counsel therefore should avoid making those kinds of argument, and should properly preserve objections and motions for mistrial when the arguments are made by the defense. 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.


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.

Those cases are consistent with the harmless error standard recently set by the Supreme Court in Special v. West Boca Med. Ctr., 160 So.3d 1251, 1256-57 (Fla. 2015): “Unless the beneficiary of the error proves that there is no reasonable possibility that the error contributed to the verdict, the error is harmful.”


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.

That standard will be extremely difficult to meet in the type of cases where courts have emphasized the highly prejudicial nature of evidence or argument that encourages the jury to defer to another fact finder.

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Disclaimer: 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.

Applications available online or by phone: 305-740-0603 • Toll Free: 866-738-3817 • Email: • | November/December 2017 | 47

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Make a GOOD Record by Shea T. Moxen


ost discussions of record preservation focus on which objections and motions you need to make in the trial court to be able to argue certain issues on appeal. But there is another aspect of record preservation that can be just as important, although it receives comparatively little attention: making sure the record clearly shows all the information the appellate court needs to be able to consider your issue—and, hopefully, to rule in your favor. It’s what we sometimes refer to as “putting it on the record” or “making a record,” rather than “preserving” the record, but it can be just as essential to ensuring that you have a winnable issue on appeal. This article will discuss some of the most commonly overlooked steps for making a clear record that gives a complete picture of what happened at the trial level. It also gives some tips for how to go beyond the bare minimum and make a good record that can help you win the appeal—or, at least, make it a lot easier for the appellate court to see your client’s side of the case.

1. Refer to exhibits by exhibit number—including when a witness is testifying about them. This one is so mundane and well known that it wouldn’t be worth mentioning, if it weren’t so commonly forgotten: whenever a trial exhibit is being discussed at trial, refer to it by its exhibit number. Of course, everyone remembers to do this when they offer their exhibits into evidence. Usually it is when a witness is testifying about an exhibit—such as describing what is shown in a photograph, or explaining the significance of a particular document—that attorneys forget to mention the exhibit number, or decide that it’s unnecessary to do so. Here is why that causes problems: sometimes it is necessary to see the exhibit to be able to make sense of the witness’s testimony, and vice

versa. In those instances, if the appellate court is unable to match the exhibit with the testimony, then both are meaningless. So you could miss a chance to get some valuable information across to the appellate court just by forgetting to say the exhibit number when a witness testifies about it. Also remember to refer to an exhibit by number when arguing over its admissibility. In one of my first appeals, I could have raised a strong argument that the trial court erred in admitting a certain document into evidence, but there was one fatal problem: no one ever mentioned the document’s exhibit number when the parties argued over its admissibility at trial. Because of that omission, the record didn’t show that the document was ever admitted into evidence, let alone how it prejudiced my client. So the issue wasn’t preserved and couldn’t be argued. 2. Make sure the trial exhibits are included in the record. The importance of including trial exhibits in the appellate record is underappreciated, because sometimes they aren’t needed—the trial testimony frequently covers all the facts well enough for the appeal. But in many other cases, the right photograph, diagram, or other piece of evidence can tell a piece of the story better than words ever could. See Nack Holdings, LLC v. Kalb, 13 So.3d 92, 94 (Fla. 3d DCA 2009) (remarking, “At this point in the record, an organizational diagram would have been more helpful than a narrative.”). And in those instances, evidentiary exhibits can be critical to the outcome of an appeal. See, e.g., Marriott Int’l, Inc. v. Perez-Melendez, 855 So.2d 624, 630 (Fla. 5th DCA 2003) (affirming denial of defendant’s motion for directed verdict, based on appellate court’s review of evidence that included photographs and a videotape of the accident scene); Lincoln v. Miggins, 249 So.2d 88, 89 (Fla. 3d DCA 1971) (affirming directed

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verdict for plaintiff on liability, based on appellate court’s review of evidence that included photographs of an access ramp). So at the end of each trial, make sure that the trial exhibits are retained in evidence so they may be included in the record on appeal. Many (if not most) clerks retain them by default, so you don’t need to do anything. But in some circuits, the clerk will return the exhibits at the end of each trial unless a party asks for them to be retained in evidence. Ask for them to be retained. And if that option is not available, file copies of your exhibits with the court. This advice applies whether you win or lose at trial. Appellees benefit from having trial exhibits in the record at least as often as appellants do. In addition to exhibits that can be printed on paper (like documents and photographs), the record can also include “tapes, CDs, DVDs, or other similar electronically recorded evidence.” Fla. R. App. P. 9.200(a) (1). So if your evidence includes audio recordings, video recordings, or an enormous number of documents, you can introduce them into evidence in one of these formats and they can be included in the record on appeal. 3. Also ensure that any excluded trial exhibits are in the record. Exhibits that were excluded from evidence must be included in the record for an entirely different reason: to preserve the issue of whether the trial court erred in excluding them. Whenever the trial court excludes evidence, an offer of proof is usually necessary to preserve any error for appellate review. Brantley v. Snapper Power Equip., Inc., 665 So.2d 241, 243 (Fla. 3d DCA 1995) (citing § 90.104(1)(b), Fla. Stat. (1993)). And when the excluded evidence consists of documents or other exhibits (as opposed to testimony), the offer of proof is done by putting the actual exhibits into the record. They should be marked for identification, fully described on the record, and maintained by the clerk along with the other exhibits offered at trial. See id. (citing Henry P. Trawick, Jr., Trawick’s Florida Practice & Procedure § 22-10, at 333 (1994); Michael H. Graham et al., Florida Evidentiary Foundations 6, n. 9 (1995 Cum. Supp.)); Fla. R. Civ. P. 1.450(b). That way, the appellate court will be able to review the exhibits to determine whether it was error to exclude them. Brantley, 665 So.2d at 243 (citing Trawick, supra). 4. When proffering a witness’s testimony, proffer the actual testimony. Just as with excluded exhibits, an offer of proof—or proffer—is also usually required to preserve an error in excluding a witness’s testimony. § 90.104(1)(b), Fla. Stat. (2017); Finney v. State, 660 So.2d 674, 684 (Fla. 1995); Jacobs v. Wainwright, 450 So.2d 200, 201 (Fla. 1984). The purpose of a proffer is to put the excluded testimony in the record, so

the appellate court can determine whether the testimony should have been admitted and how its exclusion may have affected the verdict. Finney, 660 So.2d at 684; Jacobs, 450 So.2d at 201. There are two ways to proffer testimony. The traditional method is to put the witness on the stand outside the presence of the jury, and examine the witness just as you would if the witness had been allowed to testify at trial. See Musachia v. Terry, 140 So.2d 605, 608 (Fla. 3d DCA 1962); Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 104.3, at 39 (2014 ed.). The other method is to summarize the witness’s testimony for the court in your own words. See Johnson v. Moore, 493 F. Supp. 2d 1236, 1239-40 (M.D. Fla. 2007); Peterson v. State, 465 So.2d 1349, 1350-51 (Fla. 5th DCA 1985); Ehrhardt, supra. The latter method can be very tempting. It is quicker and easier, and in some cases, can be much less costly than bringing the witness to court and putting him or her on the stand. But there are risks to proffering the testimony yourself. One is that you might not describe the testimony in enough detail to make a good record. Appeals have been lost because an attorney’s proffer lacked sufficient detail. See Arrascue v. State, 42 So.3d 927, 929 (Fla. 5th DCA 2010) (defense counsel’s generalized statements about how he intended to cross-examine a witness were insufficient to preserve any error in limiting the cross-examination). And even when an attorney’s proffer is technically sufficient to preserve the issue, it can be too generalized or sterile to build a persuasive case for reversal. Sometimes the witness’s own words can be much more vivid and convincing. Another risk is that opposing counsel might disagree with your representations as to what the witness would say, so the appellate court would not be able to rely on them as a basis for reversal. See Cooper v. State, 137 So.3d 530, 531-32, n. 1, 2 (Fla. 4th DCA 2014) (any error in limiting cross-examination of victim was neither preserved nor fundamental error where, inter alia, the parties disagreed as what the victim would say). Yet another risk is that the trial court might not consider your own proffer to be sufficient. See Holmes v. Bridgestone / Firestone, Inc., 891 So.2d 1188, 1191, n. 1 (Fla. 4th DCA 2005) (“Whether a proffer is sufficient is within the trial court’s discretion.”); see also Johnson, 493 F. Supp. 2d at 1239-40 (it is up to the trial court whether to require a testimonial proffer or a non-testimonial one). You also can never be sure whether the appellate court will consider your summary to be sufficient. Philip J. Padovano, Florida Appellate Practice § 8:6, at 169 (2015 ed.). For these reasons, you should proffer the witness’s own testimony whenever it is feasible to do so. Padovano, supra; see also Donley v. State, 694 So.2d 149, 150 (Fla. 4th DCA 1997) (“Especially where he indicates an openness to hearing a proffer of actual testimony, the trial | November/December 2017 | 49

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judge should have an opportunity to consider the evidence in light of the evidence previously admitted at trial and while a witness is present in court to testify . . . .”). If the witness is not available to put on the stand, then filing the witness’s deposition may be sufficient, assuming it covers all the critical areas of the excluded testimony. Incidentally, you should never assume that a proffer is unnecessary just because the trial court entered an order in limine excluding or limiting the testimony. A pretrial ruling in limine can eliminate the need to proffer the testimony, but only if (1) the substance of the testimony has already been made clear on the record by a sufficient proffer, and (2) the ruling definitively excludes the testimony. § 90.104(1)(b), Fla. Stat. (2017). A proffer is still necessary to preserve the issue if it is unclear what testimony was erroneously excluded by the ruling, or if the ruling was only tentative and subject to reconsideration. See Health First, Inc. v. Cataldo, 92 So.3d 859, 867 (Fla. 5th DCA 2012); Aarmada Protection Sys. 2000, Inc. v. Yandell, 73 So.3d 893, 898 (Fla. 4th DCA 2011); Spindler v. Brito-Deforge, 762 So.2d 963, 964 (Fla. 5th DCA 2000); Donley, 694 So.2d at 150-51. You can’t always predict when an appellate court will find both of these conditions to be met, so you should err on the side of proffering. 5. File all requested jury instructions in writing. We all know that we have to file our main set of proposed instructions in writing. It is required by Florida Rule of Civil Procedure 1.470(b), and trial courts virtually always set a deadline to file proposed jury instructions and verdict forms in their scheduling orders. But those aren’t the only jury instructions we request at trial. As events unfold over the course of the trial, we might find ourselves having to ask for curative instructions, limiting instructions, or revisions to our proposed instructions. Whenever possible, try to request those instructions in writing too. If you don’t have a printer available in the courtroom, write them out by hand. Putting them in writing will make it clear on the record exactly what you want the jury to be told. That way, if the trial court refuses to give one of your requested instructions, the appellate court will be in a better position to determine whether the trial court erred and how your client was prejudiced. Writing out a requested instruction will also help you to think it through. All too often, a verbal request for curative instruction, limiting instruction, or revision to a proposed instruction will be stated too vaguely to convince the appellate court that it was reversible error to deny the request—especially since the trial court’s ruling may only be reviewed for an abuse of discretion. St. Paul Mercury Ins. Co. v. Coconut Grove Bank, 106 So.3d 452, 454 (Fla. 3d DCA 2009). 6. Identify proposed jury instructions by number or title during the charge conference. During the charge conference, each time a proposed instruction comes up for discussion, make sure that someone—whether the trial judge, opposing counsel, or yourself—identifies it by number or title,

including which party proposed the instruction. I’ve read quite a few passages in transcripts of charge conferences where the trial judge and the attorneys were looking at the same proposed instruction and knew what each other was talking about, but it was impossible for the reader to figure out which instruction they were discussing or to make any sense out of what they were saying. Sometimes it can be figured out from the context of the discussion, but sometimes it can’t. So if a trial judge makes a ruling on a proposed instruction that hasn’t been clearly identified for the record, it could be impossible to challenge that ruling on appeal. 7. Always file full-sized transcripts—not condensed or “mini” transcripts. If a transcript is worth filing, then get the full-sized version—don’t file a condensed or “mini” transcript. Condensed transcripts are difficult and annoying for appellate judges to read, especially now that many of them use iPads or other electronic readers to review records on appeal. Reading a condensed transcript requires the judge to repeatedly scroll up, down, left, and right, and whenever a brief cites to a page of the transcript, it points to four pages’ worth of material, making it harder for the judge to find the passage that the writer intended to cite. Although no appellate judge would hold it against your client, you don’t want a transcript that you considered important enough to be filed with the trial court to be difficult or irritating to read. You (or your appellate counsel) may have to rely on that transcript to tell your client’s side of the case, so you want the transcript to be easy for the judges to read and absorb. 8. File clear and legible scans of documents. This is similar to the last point. Too many times, I have seen grainy, skewed, and barely legible scans of documents and transcripts in records on appeal. Usually a clear copy is easily obtainable. If something is worth filing, then it’s worth filing a clear and legible scan that will be easy for the appellate judges to digest. So as we’ve seen, preserving the record entails more than making the right motions and objections at the right time. You also have to make a clear record that tells the appellate court what it needs to know to be able to consider your issue. And paying attention to a few details can help you build a good record that will speak for you and help get your client’s side of the case across to the appellate court.


Mr. Moxon is a shareholder of Brannock & Humphries, a firm specializing in appeals and trial support that has been twice named by Super Lawyers as the best small litigation firm in Florida. He handles federal and state appeals, focusing on personal injury and wrongful death cases. Mr. Moxon is an EAGLE member of FJA, has been recognized by Florida Trend as among its Legal Elite, and has been named to the Best Lawyers in America in the area of Personal Injury Litigation. He received his undergraduate degree from Emory University and his J.D. from Harvard Law School.

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here’s nothing quite like the morning of your first trial. The steps that you’ve climbed a million times to attend small, menial hearings suddenly had a new light about them. They look bigger, more intimidating. And that 3 mile long jury line that usually threatens to make you late for your 9 am hearing, well, this time around is welcomed. You have a pleasant look on your face (despite your stomach doing backflips) because every person in this line could be the foreman that will make or break your client’s case. Your co-counsel of course is much calmer, more secure than you are. Sure, it’s all fun and games 30 trials in. You make it through security; walk in to see the judge already sitting there and you’re nervous as hell. You lugged all of your banker’s boxes filled with every single document printed in the case with you. You sit down and think – wait, I actually signed up for this? YES, YOU DID AND IT’S AWESOME. You lay out your voir dire notebook and think – what did I forget? Panic button engaged. Before you get to that point, let’s rewind 5 months – Disclosures You’re dealing with every other fire in your office and haven’t given your upcoming trial too much thought yet – it’s several months away, so you have plenty of time. Wrong. As we all know, time flies without so much as checking in, so it’s time to get cracking on your witness list or as I like to call it, the bible. It all starts and ends with that list. When you sit down to draft it, it seems so tedious and it is, but it also is your starting point to see who you want to call at trial and what you think they will offer. First and foremost, check your judge’s witness list requirements.

Some require you to indicate exactly what your experts will say and who exactly you plan to call vs. may call. Even if they don’t have strict requirements, draft a detailed witness list anyway. Just get in that habit. Why? Following a large (or even moderate) verdict, defense lawyers will hook their claws onto any half-baked concocted argument and run crying to the appellate judges that it was prejudiced and that they are entitled to a new trial. So. Fun. Prevent that argument and tell them exactly what your expert will say. Not only have you now put defendant on notice, but you have laid out exactly what you want from your experts at trial and have a list of all of the people you intend to be fact witnesses. Boom. You have your order of proof started and possibly prevented an appellate issue. As the months go on, print that witness list and continue to expand points under each witness until it comes time to make your outlines. I find it to be really helpful. Preparation Anyone with common sense will tell you preparation is the key to success. Sometimes in the trial world, that’s not always the case. It can simply be luck of the draw. One juror can change your entire game. But losing after you’ve prepared the best you could and kicked the defense lawyer’s butt all over the court room comes as much less of a painful blow than it does if you’re not ready at all. Being a trial lawyer can honestly feel like a game of chess sometimes. Half of the time you’re more worried about your opponent’s next move than you are about your own. Focus in on what you need to do – from my perspective checklists are a must. Planning every aspect of the trial (even what you plan to eat every night for dinner) makes

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life much less stressful during that week of trial. Plan out when you will meet with each expert and witness, the time you think they will testify, what exactly you need him/her to say and what they should be careful of (ie. motions in limine, defense arguments). When you’re prepared on your first day of trial, you’ll still be nervous as hell, but at least you’ll feel comfortable knowing exactly what you need to do. Your Client If you think you’re nervous, think about how they feel. These strangers are staring at him or her wondering if they are really even injured. Are they doing all of this for money? It can’t be fun hearing a defense lawyer stand in front of the jury and tell them that this all stems from that one time your client slept wrong and had a neck ache back in 1994. How dare she forget to tell her doctors about that now? Reassure them that we are on the right side. You would not be there sitting next to them, spending thousands of dollars if you did not believe in them and their story. If ASSOCIATE $1,500 you believe your client, the jury will pick-up on that and your client will be much more comfortable. Mentorship Trying a case and getting a great verdict is the goal. Getting to that goal is tough. As corny as it may sound, many of the seasoned veteran trial attorneys within the FJA love to help young FJA members flourish. Ask any of them for coffee to pick their brain or even just to hear old war stories; they will be happy to do it and it can honestly prove invaluable. At every single FJA seminar, a new trial lawyer speaks and gives insight on how he or she goes out and gets that big verdict. Listening and applying some of the techniques can prove really helpful. Hey, we all want to be Yerrid, Searcy or Swope; we all want toSOARING be legends; and,YR who1knows, maybe - $750 we all will! Or at least SOME of us will and for the rest of us, being the best we possibly can be is a noble enough goal, given the responsibility we have to our clients.

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.

Good luck and have a blast.

ELIZABETH MUNRO Ms. Munro is the managing attorney of Florida Vanguard Attorneys in Tampa. She attended Michigan State University for her undergraduate degree and Florida State University for her law degree. Florida Vanguard Attorneys specializes in personal injury and insurance bad faith litigation.

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. | November/December 2017 | 53

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SETTLEMENTS: Know the Risks Associated with “Recycled Payment Streams” by Michael Goodman, Edward Zebersky, and Michael Miller

INTRODUCTION Structured settlements are a valuable tool for resolving personal injury and workers’ compensation claims. These financial tools provide claimants with pre-designed, tax-free, payment streams that are funded by highly-regulated and highly-rated insurance companies and are commonly used to fund life care plans and provide wage support for seriously injured people. This minimizes the risk that immediate lump sum settlements will be quickly dissipated and maximizes the goal of providing claimants with the precise periodic payments that they previously sought and currently need. Recently, however, an alternative settlement funding method has emerged which is made to resemble a typical structure but is fraught with pitfalls and potential liability. These “faux” structures are often referred to as “recycled annuities,” “annuity retreads” or “recycled payment streams”. Simply, these are “structured settlements” where unsuspecting consumers resolve their cases by purchasing on the open market, prior structured settlements that were entered into by others. Although the promoters of these schemes advertise somewhat attractive yields, these devices are not what they at first appear to be and carry with them risks and taxes that are likely to outweigh any potential rewards. Among other things, the settling claimants who buy these payment streams have no actual relationship with (meaning rights against) the insurers that issue the annuity payments and are instead seemingly dependent on the good faith and solvency of the factoring companies that promise to make the future payments. Further, these settling claimants owe taxes (on portions of the recycled payment streams) that can greatly reduce or eliminate any purported monetary advantage. And finally, these periodic settlement payments are accompanied by virtually none of the statutory and regulatory protections that are offered to traditional structured settlement payees whose circumstances after settlement might lead them to exchange their periodic settlement payment rights for a lump sum payment. The Securities and Exchange Commission and the Financial Industry Regulatory Authority have issued a stern warning regarding recycled

annuities.1 This article, in addition to explaining the architecture of recycled annuities, articulates the risks that are associated with these devices – risks that are not always apparent to injured victims, their counsel, and the judges who approve settlements. DON’T BE FOOLED – RECYCLED ANNUITIES ARE NOT STRUCTURED SETTLEMENTS OR ANNUITIES An infant falls from an examination table in the doctor’s office and suffers severe injuries, including a fractured skull. The infant’s mother brings a negligence action against the minor’s pediatrician on behalf of the minor. Eventually the mother petitions the court for approval of a settlement that provides for the minor’s parents to receive an equal share of the net settlement amount. The court denies the petition, holding that the entire net settlement amount must be for the benefit of the minor. The court then directs the mother to file a revised petition proposing the purchase of a suitable annuity to protect the minor’s interest. After the court’s rejection of a second ill-suited proposal, the mother takes her third shot. This time, the petition seeks approval of a purported “structured settlement” involving an alleged “annuity.” However, instead of acquiring payment rights from an annuity issuer, the plaintiffs are buying their payment rights from a factoring company that is buying those same payment rights from an existing structured settlement payee. These were the facts presented to the Delaware Superior Court in Greenwald v. Caballero-Goehringer, M.D., C.A. No. K14C- 04-027 JJC, 2017 Del. Super. LEXIS 153 (Kent Cty., Mar. 21, 2017). The Court in its fiduciary role, looked beyond the petition’s characterization of the settlement, and rejected the use of the proposed recycled payment stream. Specifically, the court recognized that, instead of acquiring annuity rights from a rated insurance company to fund a stream of periodic payments for the minor’s benefit, the proposal was to purchase (from an unrated factoring company) the structured settlement payment rights of another claimant who had nothing to do with the present case.2

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THE ARCHITECTURE OF A RECYCLED PAYMENT STREAM TRANSACTION Recycled payment stream arrangements, like the one proposed in Greenwald, are being aggressively marketed to personal injury and workers’ compensation claimants. Although there are variations, here is a simplified transaction overview:3 The process starts with a factoring company buying structured settlement periodic payment rights from an existing settlement plaintiff who previously settled his or her case. This individual’s payment rights are typically funded by an annuity that was purchased at the time of the individual’s original settlement. In accordance with existing statutory and regulatory protections for structured settlement payees with regard to the transfer of structured settlement payment rights, the factoring company must satisfy a relatively rigorous process and must make various disclosures to the payee and then get court approval of the transaction.4 Around the same time that a court order is entered approving the purchase of that individual’s payment rights, the factoring company enters into an entirely separate contract with another plaintiff to sell to that plaintiff the first individual’s rights to the very same, now to be recycled, income stream – only the amount that this second plaintiff is paying to acquire those rights is far more than what the factoring company previously paid to the first individual (and of course the factoring company after paying some expenses is pocketing the difference). The source of the funds for the purchase of the recycled payment stream by the second plaintiff is money from a lump sum settlement of the second plaintiff ’s personal injury or workers’ compensation claim. In other words, the second plaintiff (instead of using settlement consideration to enter into a traditional structured

settlement) takes a lump sum settlement and then buys a recycled payment stream from a factoring company. Below is an example and an overly simplified diagram using estimated figures:6 Factoring company buys payment rights from an existing structured settlement claimant (below, the “First Plaintiff”). The settlement provides for payments of $1,000 per month for 20 years, for a total of $240,000. After court approval of the factoring transaction, the First Plaintiff is paid $65,000, representing a discount rate of approximately 19.5%. At the same time, the factoring company contracts with a second plaintiff (below, the “Second Plaintiff”), who is in the process of settling a personal injury claim. This Second Plaintiff uses his lump sum personal injury settlement payment to buy the rights to the already factored income stream for $140,000, providing an annual return (before taxes) to the investor of 6.1%. The factoring company, after paying expenses including to promoters and sales people, then pockets the difference (up to $75,000) as profit.7 THE COSTS AND RISKS ASSOCIATED WITH RECYCLED PAYMENT STREAMS ARE SIGNIFICANT As the Greenwald court correctly recognized, recycled payment streams are neither the same as, nor safe and reliable substitutes for, traditional structured settlements funded by annuities. Recycled Payment Streams Are Not Tax-Free In a traditional structured settlement of a personal injury or workers’ compensation claim, the entire amount of each of the periodic payments is excludable from the payee’s income pursuant to Section | November/December 2017 | 55

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THEBRIEFCASE 104 of the Internal Revenue Code. In other words, the settling plaintiff pays no tax on the lump sum used to buy the annuity and pays no tax on the annuity payments and earnings. It’s a great deal. Recycled payment streams are different. The settling plaintiff (or workers’ compensation claimant) receives a lump sum settlement payment (which is excludable from income). Those funds are then paid to the factoring company (or its agent or assignee) in exchange for the rights to the recycled payment stream. To the extent the recycled payment stream generates payments that are larger than the lump sum purchase price, the settling plaintiff will have to pay federal and state income tax on those payments. In other words, the settling plaintiff will need to pay taxes on the difference between what he or she paid for the recycled payment stream and what the recycled payment stream pays out. Using the example above is helpful. The Second Plaintiff paid $140,000 for payments that will pay out $240,000 in monthly payments to them over time. Therefore, taxes would be owed by the Second Plaintiff on the difference, which is $100,000. Approximately $416 out of each monthly payment of $1,000 (assuming a common average tax rate) will be taxable income to the second plaintiff. Thus, assuming a common average tax rate of 29%, the actual net monthly payments are quickly reduced to $879 after tax is paid on the $416, and the actual rate of return decreases from 6.1% to only 5.3%. The Recycled Payment Stream Is Not Directly Backed By an Annuity or Rated Insurance Company Although frequently promoted as income streams backed by an annuity or, in some cases, as an actual annuity, in truth, a recycled payment stream is only indirectly backed by an annuity. The plaintiff who acquires the recycled payment rights is not the owner, the named annuitant, or an intended third-party beneficiary of that annuity. This should have significant legal consequences. For example, while in many states structured settlement payments may be shielded from claims of creditors under laws granting exemptions for structured settlement annuities (including, for example, when a payee files for bankruptcy protection), such exemptions are not likely to apply to recycled payment rights. Likewise, a plaintiff acquiring a recycled payment stream presumably would not have direct access to the annuity issuer for purposes of obtaining information about the annuity, since such a plaintiff has no contractual relationship with the issuer or other rights under the annuity. Relatedly, a plaintiff who accepts a recycled payment stream is likely relying on the integrity and solvency of the factoring company that sells it to them. This is because the only party with clear rights against the annuity issuer is the factoring company – not the plaintiff who purchases the recycled payment stream. In fact, in many of these deals, the factoring company bears all responsibility for receiving factored structured settlement payments from the annuity issuer and then re-distributing them to the purchasing plaintiff. In such cases, that plaintiff (who thinks he or she has actually acquired the rights to the annuity payment stream) runs the inherent risk that the factoring company may either (1) misappropriate the payments, or (2) file bankruptcy and be unable to process or send the payments. If the

latter occurs, the plaintiff may be left with little to no remedy at law against the insolvent factoring company. Further, in the unlikely but possible event of an annuity issuer’s insolvency, periodic payments in traditional structured settlements are protected by state guaranty association coverage. By contrast, payment streams acquired by a factoring company from a structured settlement payee are not likely to be entitled to such protection. The Factoring Transaction Giving Rise To The Factoring Company’s Rights To The Payment Stream May Be Invalidated In a March 28, 2017, opinion coming out of the U.S. District Court for the Western District of Pennsylvania, the court explicitly warned purchasers of recycled payment streams that are based on underlying factoring transactions that were tainted by fraud: “[a]s a caution to those investing in these sold annuities, a court can later vacate the sale of the annuity payments when the underlying plaintiff selling his annuity payments lacked authority to sell . . . leaving the eventual investors without the purchased asset.” Wall v. Altium Group, LLC, et al., No. 16-1044, 2017 WL 123779 at *1 (W.D. PA, Mar. 28, 2017). Thus, the mere fact that the factoring company’s purchase of the payment stream was approved by court order is no guarantee that encumbrances or other defects in the original payee’s payment rights do not exist, or even that the underlying factoring transaction is valid. Indeed, there are multiple cases where court-approved factoring transactions have been called into question and later deemed invalid and void despite their approval by a court, and for a variety of reasons. This scary proposition is a nightmare scenario for the recycled payment stream client and their attorney. For example, in 2014, a rogue employee of a New York law firm representing factoring companies was allegedly forging dozens of SSPA factoring transaction approval orders. Similarly, in late 2015, an attorney who represented a number of factoring companies in South Florida was charged with forging the signatures of multiple Broward County judges on court orders related to 111 petitions for approval of factoring transactions.8 Although almost all of these transfers were later reconfirmed by the court, the risk to investors was real. There are also pending cases where payees are seeking to void prior transfers based on allegations that the transfer court lacked jurisdiction, based on claims that the factoring companies involved funneled out of state payees to favorable courts in other juridictions.9 In addition, recycled payment rights are also subject to all of the infirmities that already existed when those rights were purchased from the original settlement payee. And given the fraud and other financial misappropriation issues that have developed in the factoring industry over the course of the past few years, this could cause big problems for plaintiffs who settle their cases using recycled payment streams. If, for example, the original payee’s payment rights are subject to a child support, tax, or attorney’s lien, the payment rights may remain subject to those encumbrances. Alternatively, a divorce decree may

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Stuart - Port St. Lucie Jupiter - Jupiter Island Palm Beach Gardens North Palm Beach Greenacres West Palm Beach

Fort Pierce Wellington Lake Worth Boynton Beach Delray Beach Boca Raton

Southeast Florida is more than just Dade and Broward Counties. Make a local referral to the Law Offices of Craig Goldenfarb, P.A.


Auto Accidents | Slip and Falls | Nursing Home Neglect

CO-COUNSEL FEES PAID IN ACCORDANCE WITH FLORIDA BAR RULES. The Law Offices of Craig Goldenfarb, P.A. 1800 S Australian Ave Ste 400 West Palm Beach, FL 33409

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have awarded the original payee’s ex-spouse an interest in the payments, which may mean the rights were not the original payee’s property to sell. Furthermore, if the original payee had been through a bankruptcy proceeding and failed properly to identify the payment stream as an estate asset and establish that said payments are exempt from creditors’ claims, the bankruptcy estate and the creditors may also be entitled to assert a claim to the payments. Lastly, the original payee might have previously sold the identical payment rights to someone else – which is more common than one might think.

amounts of money, and as a result, settling on a lump sum basis can create the risk of quick dissipation of an award that was intended to provide life-long care or medical assistance. Likewise, minor children, who often times will need money over the course of their futures, need protection from those who may try to take advantage.

Perhaps the most important lesson to be drawn here is that, even with the most assiduous due diligence, a plaintiff will be hard-pressed to discover the sorts of latent infirmities that threaten the validity of recycled payment streams. In comparison to the wealth of information available about insurance companies (and their agents and assignees) that issue annuities, there is little public information regarding factoring companies and even less about the activities of settlement payees that might affect their ownership rights to the payments they factor.

However, it is paramount that these traditional structured settlements not be confused with recycled payment streams which involve taxable future payments that are really nothing more than an unsecured promise by a factoring company to make those payments when they come due. At the very least, brokers, attorneys, judges, and settlement claimants alike need to have a heightened awareness of the potential risks that they may face with recycled payment streams. ______________

Subsequent Transfers of Recycled Payment Streams Will Not Be Afforded the Consumer Protections Provided For Under State Structured Settlement Protection Acts

See Investor Bulletin: Pension or Settlement Income Streams – What You Need to Know Before Buying or Selling Them, SEC Pub. No. 143 (5/13).

This final point is important. With a traditional structured settlement, a payee’s circumstances may change over time, and so they may decide at some point to exchange their right to receive the periodic payments for a lump sum payment. Although these factoring transactions are all too common, the process is at least highly regulated and serves to protect payees from the sharp practices of factoring companies. In stark contrast, if a plaintiff settles his or her case using a recycled payment stream, and then has that same change in circumstances and later decides to exchange the payment stream for a lump sum payment, that plaintiff will have no such protections.


This is because recycled payment streams do not fall within the scope of the state SSPAs (State Structured Settlement Protection Acts). SSPAs only apply to transfers by payees who are receiving tax-free periodic payments from traditional structured settlements where the payees’ rights are tied directly to the actual annuities. Therefore, if a plaintiff later seeks to sell his or her recycled payment stream rights for cash, the plaintiff will not enjoy the benefit of any of the consumer protections afforded by the SSPAs, including the right to review detailed disclosures (including disclosure of the discount rate being charged) and the accompanying judicial scrutiny and court approval requirements embedded in the SSPAs. Instead, these plaintiffs will be potentially vulnerable to the excessive (and sometimes unconscionable) discount rates and other unfair and suspect practices historically plagued the factoring industry. RECYCLED PAYMENT STREAMS ARE BAD BOTH FOR PLAINTIFFS AND THE STRUCTURED SETTLEMENT INDUSTRY AS A WHOLE Personal injury and workers’ compensation claimants need protection. Many of these claimants have little or no experience managing large

Traditional structured settlements – which involve completely tax free payments that are paid over time and are funded by highly regulated and rated insurance companies – make great sense.


Judge Clark’s opinion appropriately notes that a court has the “obligation to review proposed settlements of minors’ claims to ensure that they are in the best interest of the injured minors . . .” and that the recycled payment stream offered was not a “true structured settlement.” These devices are also being marketed to investors who are not settlement claimants. See, e.g., Complaint, Consumer Finance Protection Bureau v. Access Funding, LLC, et al., Case No. 1:16-cv03759 (describing the business practices of a factoring company, Access Funding, LLC, which included the acquisition of future structured settlement payment streams to “. . . transfer those payment streams to third-party investors.”)


Otherwise, the factoring company will owe a 40% excise tax under Section 5891 of the Internal Revenue Code, and the transaction will be voided pursuant to the applicable Structured Settlement Protection Act(s) (SSPA(s)), which exist in nearly every state.


Of course, unlike with a traditional structured settlement, which can be tailored to an individual plaintiff’s needs (e.g., providing for the payments to begin on a minor’s 18th birthday, planning for college, etc.), a plaintiff settling with a recycled payment stream will have to select from payment streams that were designed for the benefit of someone else.


This is not an actual transaction. The numbers are fabricated, and are rounded off to simplify the example.


As explained below, the actual return is actually much less due to federal and state income taxes.


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Another example is the suit filed by the Attorney General of Maryland against Access Funding, a Maryland factoring company. The Attorney General is seeking to invalidate approximately 150 previously court approved factoring transaction on the basis of, among other things, alleged factoring company fraud upon the court. See Consumer Protection Division v. Access Funding, et al., Circuit Court for Baltimore City, Maryland, Case No. 24-C-16002855. 8

In the Wall v. Altium case cited above, the court held that an investor in recycled payment rights was not permitted to pursue claims against the underlying factoring company but was entitled to pursue claims against the company that assisted in effectuating his recycled payment stream deal, after the court order approving the underlying factoring transaction was set aside for fraud. See Wall v. Altium Group, LLC, Civ. Action No. 16-1044, 2017 U.S. Dist. LEXIS 44857 (W.D. PA, Mar. 28, 2017). However, the fact that one or more recycled payment stream customers was permitted to seek reimbursement is not the point. Rather, the point is that these recycled payment stream transactions can go badly, and the buyers will then have no choice but to pursue complicated legal cases against the factoring companies and involved agents and other promoters to avoid significant or even total losses.



John Romano’s



2018 MONTHLY HIGHLIGHTS MICHAEL GOODMAN Mr. Goodman, a principal of National Financial Partners (NFP), is a managing partner of NFP Structured Settlements with offices in Florida, Ohio, Pennsylvania, West Virginia, California and Georgia. One of only 550 Certified Structured Settlement Consultants in the country, Michael has been active in the structure industry since 1991 and has produced over $1.5 Billion in structured settlement annuities. He has been involved in more cases than any other consultant in the country. He also manages NDC Advisors (NDC) a trust administration company and is a Past President of the National Structured Settlement Trade Association (NSSTA).

EDWARD ZEBERSKY Ed is a former Florida Justice Association (“FJA”) President. He currently serves on the American Association for Justice (“AAJ”) Board of Governors and is an active participant in several other trial lawyer organizations including the American Board of Trial Advocates (“ABOTA”). He and his partner, Todd Payne have been in practice together for over 20 years and now share their South Florida firm, Zebersky Payne, LLP with Michael Lewenz and Jordan Shaw. The firm specializes in all types of class action cases, large and small personal injury cases, consumer litigation, commercial complex litigation, and the occasional unwinding of a bad used-car deal for an elderly couple. Zebersky Payne, LLP practices nationwide and their moto is “no case is too big or too small as long as the cause is just.”


Michael is a commercial litigator who concentrates on significant insurance and annuity cases. Over the course of the past 25 years, Michael has litigated and tried a wide variety of cases in state and federal courts across the country as well as before domestic and international arbitration panels. Much of Michael’s work has been focused on structured settlements. He has represented a long list of annuity owners and issuers and producers in this context. Michael has also assisted with drafting model structured settlement legislation and has counseled insurers on developing protocols for responding to the issues raised by factoring transactions and the claims that often result from these transactions.

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FEBRUARY February 2,8,13,15,20,22,27 Young Lawyer Boot Camp Webinar Series

MARCH March 1, 6, 8 Young Lawyer Boot Camp Webinar Series March 20-23 John Romano’s Workhorse Seminar, Marriott’s Orlando World Center

APRIL 4/27 Collateral Sources Webinar

MAY MAY 17 The Law & The Stethoscope; Medical School For PI Attorneys

JUNE 2018 6/20-23 Annual Convention The Breakers Palm Beach

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FJA’s 2017 Honorable E. Earle Zehmer Memorial Mock Trial Competition Was a Huge Success!


Heather Freeman Jones, Anderson & Anderson, Tampa

he competition occurred Saturday November 4, 2017 - Sunday November 5, 2017 at the Orange County Courthouse in Orlando, Florida. Six Florida law schools competed including Dwayne O. Andreas School of Law: Barry University, Florida International University Law, Florida State University College of Law, Nova Southeastern University Shepard Broad College of Law, St. Thomas University School of Law, and Stetson University College of Law. Florida International University Law competed against Stetson University College of Law in the Final Round, with Florida International University Law winning the competition, making them back-to-back champions. The Best Advocate Award for Saturday’s rounds, sponsored by Fast Funds, was given to Mr. James Foster from Nova Southeastern University Shepard Broad College of Law. The Final Round Best Advocate Award, sponsored by Swope Rodante, was given to Ms. Courtney Salas from Florida International University Law. The FJA Young Lawyers’ Section also presented Colling Gilbert Wright & Carter with our inaugural

Champions of Trial Advocacy Award for its promotion of trial advocacy and continued support of the competition. Scoring the competition rounds were attorneys sitting as scoring jurors. All rounds of competition had at least five scoring jurors, with almost all of Saturday morning’s courtrooms having seven scoring jurors. Local Judges presided over the competition rounds, with our own FJA President Dale Swope substituting in a courtroom and Federal Judge Paul Byron presiding over the final round. We send a big thank you to our Orlando members who participated in huge numbers, and another big thank you to our statewide members who drove hours to participate. We especially thank Jon Gilbert, Mock Trial Co-Chair and Immediate Past Chair of the YLS, Vanessa Brice, Cassidy Perdue, Amanda Dunn, and FJA Deputy General Counsel, G.C. Murray, Jr for their service as members of the Mock Trial Committee.

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Along with the competition was a charity book drive to support the Innovative Community Engagement Foundation. Many books were donated by our members.

The Competition could not have occurred without our generous Sponsors: Platinum Sponsor Colling Gilbert Wright & Carter Gold Sponsor • Wayne Hogan Silver Sponsors • Fast Funds • Robson Forensic • Searcy Denney Scarola Barnhart & Shipley • Swope Rodante • US Legal Support • The Yerrid Law Firm, P.A.

Bronze Sponsors • Accurate Serve • Black Diamond Funding • Suits On Staffing Board Sponsors • Anderson & Anderson • Barrett Fasig & Brooks • Carrillo & Carrillo • Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin • Goldberg, Racila, D’Alessandro & Noone, LLC • Grossman Roth Yaffa Cohen • Kelley/Uustal • Lytal, Reiter, Smith, Ivey & Fronrath • The Mallard Law Firm • Law Offices of Tragos, Sartes & Tragos Next up for the FJA Young Lawyers Section is our Young Lawyer Lobby Days. Join us in Tallahassee January 23 – 25, 2018 to meet with our law makers

Jacksonville Members Raise Record Funds for Jacksonville Area Legal Aid


or the FJA’s 11th Annual Jacksonville Wine Reception, FJA members raised $17,000! These donations go directly to the Jacksonville Area Legal Aid (JALA), a non-profit law firm which assists low-income, local community members plagued with civil legal issues. With only 30 attorneys and a 30-year history of providing high-quality legal representation in a variety of service areas, JALA is an integral part of the Jacksonville legal community. “The idea for the holiday party started the year I was president of the Jacksonville Justice Association (JJA). We wanted a social event for our membership that was fun

and stood out. We came up with the idea of having what would be the kick-off party of the holiday season and decided to do it the Monday before Thanksgiving. Since then, we’ve always had it on that Monday night. Initially, we asked local attorneys and law firms to sponsor the event costs, but after a couple of years we got corporate sponsors to cover the event, and the sponsorships we collected were donated to JALA. As JJA members, we are thankful for the work that JALA does in the community, helping those who can’t afford to help themselves.” - Tom Slater | November/December 2017 | 61

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Steve Jaffe with the Help of Gary Farmer Feeds Over 3,000 for Thanksgiving FJA Board Member Steve Jaffe organized the 8th annual “Turkey Give Away,” a program that distributes 675 turkeys and side fixings to families in need during the Thanksgiving holiday. This effort is made possible with the help of local volunteer groups, and whole families who were encouraged to participate. Jaffe and his crew organized the food and deliver the meals door-to-door in five low-income South Florida neighborhoods.


Keep in touch and up-to-date with all of our latest news, events and campaigns. @florida_justice

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!

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FJA Executive Director Paul Jess Honored with Spartan at Thermopylae Award Howard Coker and the Jacksonville Justice Association presented the annual “Spartan at Thermopylae� Award to FJA Executive Director, Paul Jess at the recent FJA Jacksonville Wine Reception. This award recognizes an individual who always stands ready to defend justice even against overwhelming odds and at great personal cost.

FJA Staff Support ICE Foundation and Boys Club of the Big Bend for Holiday Charity Each year, the FJA staff supports a local charity in honor of the holiday season of giving. This year, the staff will support the Innovative Community Engagement (ICE) Foundation event, an initiative to provide warm clothing for children, and the Boys & Girls of the Big Bend. The ICE Foundation was founded by FJA Deputy General Counsel G.C. Murray, Jr., and has a mission to stimulate different segments of society through mentorship, service, and professional development.

Wishing FJA Finance & Accounting Director Steve Stewart a Happy Retirement In celebration of his years of service, Past Presidents and other FJA leaders surprised Finance & Accounting Director Steve Stewart with a very generous financial gift in honor of his retirement. The FJA Board of Directors also voted unanimously to bestow an honorary FJA membership upon Steve in recognition of his dedication to the organization and its mission. | November/December 2017 | 63

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The FJA would like to recognize the following members for their contributions and continued commitment to helping us protect Florida’s Civil Justice System.

ALACHUA Benefactor Mark A. Avera Patron William T. Allen, Jr. Michael S. Rywant Sponsor Lance Fletcher Avera Matthew Carrillo Carey Wagner Meldon Jack Meyer Ross, Jr. Soaring Yr2 Alan Emerson McMichael BAY Benefactor H. L. (Larry) Perry Patron Waylon Thompson Edwin Walborsky Sponsor Douglas B. Dykes Richard H. Gaunt John W. (Jay) Manuel Hal Mardenborough Herbert Lester McFatter, Jr. Clayton R. Syfrett Kimberly J. Syfrett Zachary B. Taylor Associate Brian Connors Christopher R. Cumberland Soaring Yr1 Colin McMichen BREVARD Patron O. John Alpizar S. Sammy Cacciatore Sammy M. Cacciatore Stephen G. Charpentier Sponsor David M. Alpizar Douglas R. Beam Joe Teague Caruso Bruce W. Jacobus, Jr. Mark S. Peters Ernest C. Wright

Associate Derrick R. Connell Eric S. Gillin Christian Lindbaek Bradley W. Sinclair Soaring Yr2 Riley H. Beam BROWARD Benefactor Sen. Gary M. Farmer, Jr. Robert W. Kelley John J. Uustal Patron Ian Boettcher Dan Cytryn Neal W. Hirschfeld Jordan M. Kirby Scott S. Liberman Jesse Alan Lieberman Hyram M. Montero Daniel F. O’Shea Anthony Quackenbush Robert M. Roselli Diana Santa Maria Andrew Y. Winston Edward H. Zebersky

Rick M. Ellsley Beth Walker Finizio John P. Fischer Ken M. Frankel Harris W. Gilbert Eric Ginnis Lyle M. Koenig Peter Mineo, Jr. Geoffrey David Pelosi Kenneth J. Sobel Nicholas R. Thompson Michael Adam Weiss

Scott D. Sheftall Charles A. Sorenson Sponsor Fraz Ahmed Richard R. Alexander Barry B. Ansbacher Frank A. Ashton Galen D. Bauer Steven R. Browning William S. Burns, Jr. Howard Gardner Butler Sean B. Cronin Roger J. Dodd William C. Gentry Lee T. Griffin Renee Daigle Harrell Corinne C. Hodak James R. Holland, II Jay Howanitz John S. Kalil Bruce Alan Maxwell Keith L. Maynard Jason Scott Miller Barry E. Newman Curry G. Pajcic Curtis S. Pajcic Michael Pajcic Seth Alexander Pajcic Stephen J. Pajcic, III Angelo M. Patacca, Jr. S. Perry Penland, Jr. Alan M. Pickert Anita C. Pryor Gregory D. Prysock Eric C. Ragatz Raymond P. Reid, Jr. Ben Richard Christopher Nemat Shakib Thomas F. Slater Matthew W. Spohrer Robert F. Spohrer Zachary Tucker Lindsay L. Tygart Gretchen Van Liere Stephen Watrel

Asbestos Soaring Yr2 Michael A. Hersh

Representing Mesothelioma & Lung Ca for Over 25 Years Throughout F

Sponsor Michael S. Davis Jeffrey M. Fenster Mark S. Fistos Alan M. Green Nathaniel E. Green Scott Lyon Henratty Steven R. Jaffe John K. Lawlor Joseph I. Lipsky Daniel R. Maier Scott T. McCullough Nicol John Panebianco Howard L. Pomerantz Richard P. Pravato Robert C. Solomon Andrew Weinstein Anthony B. White

Alan Pickert

CHARLOTTE Patron W. Cort Frohlich Brian O. Sutter

Sponsor James D. Gordon, III

Florida Lawyers Representing Floridians

Associate Chris E. Frohlich Jacqulyn Mack

Asbestos Exposures: Soaring Yr1 Shipyard, USN, Bryan R. Greenberg William C. Lewis Corbin Scott Sutter Construction, Automotive, COLLIER Power Plants, Paper Mills, Sponsor Sharon M. Hanlon Household, Etc. Theodore Zelman Associate Richard L. Weldon, II DUVAL Founder Wayne Hogan

Terrell Hogan

(904)632-2424 • 800-850-8410

233 East Bay Street, 8th Floor • Jacksonville, Florida 32202

Advocate Howard C. Coker

Associate Benefactor Gregg Joseph Anderson The hiring of a lawyer an important decision that should not be based solely up Joseph V.isCamerlengo, Jr. Donald F. Black Associate Before you decide, ask us to send you free written information about our qualifica Thomas S. Edwards, Jr. R. Scott Costantino Jeffrey A. Adelman Rebecca Bowen Creed Miguel A. Amador Patron Eddie Easa Farah Louis R. Battista F. Catfish Abbott Leslie A. Goller Jesse N. Bernheim Christopher G. Burns Bryan Scott Gowdy Milton S. Blaut Paul M. Doolittle Rodney G. Gregory Adam D. Breit Daniel A. Iracki Holt Harrell Samuel Aaron Coffey Matthew Nichols Posgay Julie Marie Harrell Randall A. Diez, Jr.

Over partn

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Asbestos Asbestos

Representing Mesothelioma & Lung& Cancer Victims Representing Mesothelioma Lung Cancer Vic for Over 40 Years Throughout Florida for Over Years Throughout Florida Florida25 Lawyers Representing Floridians Florida Lawyers Representing Floridians


ng Cancer Victims out Florida Alan Pickert



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Asbestos Exposures: Terrell • Hogan Shipyard, USN, (904)632-2424 • 800-850-8410 233 Construction, East Bay Street, 8thAutomotive, Floor • Jacksonville, Fl 32202 Power Plants, Paper Mills, Household, Etc.

For forty years our firm has been dedicated to assisting thousands of asbestos victims suffering (904)632-2424 • 800-850-8410 from malignant mesothelioma, lung cancer and 233asbestosis East Bay Street, 8th Floor • Jacksonville, Florida 32202In 1981, throughout Florida and beyond. Alan Pickert Anita Pry we represented a World War II Navy veteran and The hiring of a lawyerobtained is an important decision first that should not bedamages based solely verdict upon advertisements. Florida’s punitive to Before you decide, ask us to send you free written information about our qualifications and experience. punish the world’s largest asbestos corporation for its reckless conduct and successfully handled the precedent-setting appeal. That products liability Anita Pryor ruling still stands, and the work continues.

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ased solely upon advertisements. our qualifications and experience.

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Asbestos Exposures: Shipyard, USN, Construction, Automotive, Power Plants, Paper Mills, Household, Etc.

Over the decades, we have worked with law firms all across Florida to represent victims of mesothelioma and other asbestos diseases. Consider partnering with us to help those afficted in your community. Especially with mesothelioma, prompt action and preserving testimony is crucial. November_December_12_14_17.indd 65

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EAGLESPOTLIGHT Laurence Huttman Leslie Scott Jean Bart Grant Kuvin Albert H. Lechner David Margol Blane McCarthy John M. Phillips Raymond M. Ravis Chad Steven Roberts Michelline Haynes Ruth Charles Anthony Sorenson, Jr. Aaron Sprague Steven Teppler A. Daniel Vazquez

Christopher G. Paulos Matthew D. Schultz Daniel M. Soloway Clayton Taylor Warren R. Todd Thomas J. Ueberschaer Michael B. Vigodsky Aaron Watson

Soaring Yr2 N. Joel Harris Janeen M. Kirch Stefano Portigliatti

HERNANDO Sponsor Jason M. Melton

Soaring Yr1 Michael Kalil ESCAMBIA Founder Fredric G. Levin Troy Rafferty Benefactor Samuel W. Bearman Virginia M. Buchanan Marcus J. Michles, II Patron M. Robert Blanchard Brent Bradley Terence Gross J. Alistair McKenzie T. Michael McLeod Timothy M. O’Brien Mark J. Proctor Randle D. Thompson Joseph A. Zarzaur, Jr. Sponsor Kimberly Lambert Adams J. Quin Baker William C. Baker, Jr. Brian H. Barr Bobby J. Bradford Rachael Raymon Gilmer Jonathan R. Mayes Mike Papantonio Louis K. Rosenbloum Charles Allen Schuster Arthur A. Shimek Associate Adrian R. Bridges Antonio Bruni Brian P. Carter Bill Cash, III Christopher P. Janes Kelly D. Murphy

Soaring Yr2 John E. Rogers Soaring Yr1 Kent Asbury Eadler

HIGHLANDS Sponsor Steven C. Brown HILLSBOROUGH Founder Celene Humphries William F. Merlin, Jr. John C. Murrow Dale M. Swope Hendrik Uiterwyk C. Steven Yerrid Benefactor Lee Delton Gunn, IV Jason F. Lamoureux Patron Timothy G. Anderson Stephen A. Barnes Brent Bigger Peter F. Catania Brandon Cathey Clifton C. Curry, Jr. Mac A. Greco, Jr. Dennis Hernandez Robert T. Joyce Christopher Ligori Chris Limberopoulos Stephanie Miles Shea Thomas Moxon Matt D. Powell Lillian J. Reyes Joyce Angela E. Rodante Brent G. Steinberg Jose A. Toledo Michael J. Trentalange Scott M. Whitley Sponsor Todd Alley Heather Barnes Richard A. Bokor Web E. Brennan Donald W. Buckler

James D. Clark Jay Cooper Matthew R. Danahy David D. Dickey Matthew K. Fenton Frank F. Fernandez, III Jennifer Gentry Fernandez Manuel J. Fernandez Marcus Fernandez John Timothy Fox Ralph L. Gonzalez Mac A. Greco, III Don G. Greiwe James W. Guarnieri, Jr. John A. Guyton, III Betsey T. Herd Martin J. Hernandez Chris M. Kavouklis Keith Ligori Stuart C. Markman Kevin Michael McLaughlin Charles T. Moore Jason Mulholland David Cabel Murray J. Steele Olmstead Rob K. Roy Philip J. Slotnick Ty Tison Alan F. Wagner Vincent K. Ward, Jr. Jason Kyle Whittemore Associate Tim Anderson, Jr. Scott Arthur Cory Alan Baird J. Daniel Clark Matthew Crist Louis Christopher DeBari Dario Diaz Scott P. Distasio Manuel G. Franco Andrew Hamilton Sarah K. Hibbard Heather Freeman Jones Mark Allen Lee Maegen Peek Luka Anthony D. Martino Anthony T. Martino Frank Charles Miranda Elizabeth Munro Kristin A. Norse N. Brook Nutter Carl J. Ohall Richard W. Osborne Paul William Rebein Craig Evan Rothburd Thomas J. Seider Rep. Sean M. Shaw Christopher J. Smith Nicole C. Vinson Bill Wagner Michael J. Winer

INDIAN RIVER Patron David M. Carter Sponsor Brian J. Connelly Rep. Erin K. Grall Jason L. Odom Douglas W. Tuttle Associate Patrick M. Grall JEFFERSON Sponsor Floyd B. Faglie LAKE Sponsor Timothy S. Babiarz Associate Heath Nailos LEE Patron Jeffrey R. Garvin Bruce L. Scheiner Sponsor Joseph A. Linnehan Allan M. Parvey Richard L. Purtz Preston John Scheiner Randall L. Spivey Brian C. Vigness Associate Joseph J. Bernardo Leland E. Garvin David M. Goldberg Scot D. Goldberg Ryan T. Hughes Evan Lubell James L. O’Leary, II Andrea Pleimling Smith Christopher Joseph Smith Soaring Yr2 Benjamin Russell LEON Founder James W. Gustafson, Jr. Benefactor John S. Mills Patron Paul M. Anderson Dana N. Brooks Cooper James E. Fasig C. David Fonvielle

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Lisa Magill Foran Matthew K. Foster Scott E. Gwartney Donald M. Hinkle Cameron M. Kennedy Dean R. LeBoeuf Daryl D. Parks Sponsor Andrei Antohi John Brazzell Michael Carter Elisha M. Charpentier William W. Corry David M. Frank Michael G. Haire, Jr. William Dean Hall, Jr. Halley B. Lewis, III Allen S. McConnaughhay James E. Messer, Jr. Gregory Noonan Jeffrey A. Porter Robert M. Scott John Clint Wallace Associate Courtney Brewer Hubert R. Brown Thomas J. Brown Arthur Collin Cherry William Thomas Cotterall Kimberly A. Driggers Henry J. Graham Andrew D. Manko Eric Milles Randy V. Pelham Carter Scott Soaring Yr1 Amber Hall Jaeson W. Homola MANATEE Patron Steven E. Heintz Sponsor Kevin M. Gallagher Gregory Scott Hagopian Associate Anthony David Barak Lisa Ann Kalo Bruce M. Kleinberg Kennedy Legler, III Leonard A. McCue Daniel Murphy Edward M. Murphy Carl Edward Reynolds, III MARION Sponsor Daniel L. Hightower Bruce R. Kaster

Greg King Skip E. Lynch Victor J. Musleh, Jr. John H. Piccin Dorothy Clay Sims Steven Ward Wingo Associate Dock A. Blanchard Jarrod King MARTIN Patron Gloria Seidule Associate R. Mike Crary David Walker MIAMI-DADE Founder Alex Alvarez Lewis S. (Mike) Eidson, Jr. Stuart Z. Grossman Michael Andrew Haggard Stuart N. Ratzan Neal A. Roth Benefactor Stephen F. Cain Lincoln J. Connolly Thomas A. Culmo William Andrew Dean Philip A. Gold Stephen A. Marino, Jr. Andrew B. Yaffa Patron Miriam Fresco Agrait Michael A. Alvarez Nicole T. Armstrong David W. Bianchi Heriberto Rodolfo Borroto Lisa Cabrera Richard E. Chait Sean M. Cleary Ramon Oscar Crego Jeffrey D. De Carlo Gregory A. Deutch Andrew L. Ellenberg Aaron S. Feuer Gary D. Fox Raul E. Garcia, Jr. Philip M. Gerson Jay Halpern John H. (Jack) Hickey Phillip E. Holden John Edward Hughes, III Lewis N. Jack, Jr. Julie Braman Kane John Elliott Leighton Steven C. Marks Ricardo M. Martinez Cid Douglas J. McCarron David M. McDonald

John W. (Jack) McLuskey Todd Jordan Michaels Andrew Needle Brett Alan Panter Skip Pita Manuel Alex Reboso Meranda Reifschneider Nicholas I. Reyes Brett M. Rosen Stephen F. Rosenthal Robert Mayer Rubenstein Herman J. Russomanno Ninfa Schmidt Anthony Joseph Soto Francisco J. Vinas Gregory Charles Ward Roy D. Wasson Randy Marc Weber Stuart J. Weissman Rebecca Whitt Jonah Wolfson

Joshua Hertz Jed Kurzban Ramon Malca Vidian Mallard Mark J. Mintz Ricardo Morales Spencer G. Morgan Todd D. Rosen Stephen F. Rossman David Sampedro Ernesto L. Santos, Jr. Richard Bodin Sharp Salvatore J. Sicuso Rodolfo Suarez, Jr. Mark A. Touby Lea P. Valdivia Matthew Weinshall

Sponsor A. Dax Bello Garrett J. Biondo Robert B. Boyers David Buckner Kenneth J. Bush Judson L. Cohen Natasha Cortes Joel D. Eaton Robert J. Fiore Jonathan Friedland Rachel Wagner Furst Deborah J. Gander John Gravante, III William Andrew Haggard Andrew C. Hall Robert C. Josefsberg Joseph J. Kalbac, Jr. Christopher Lang Marlowe Seth Miles Eduardo Olivera Robert L. Parks Philip Dixon Parrish Aaron S. Podhurst Peter Prieto Ramon Alvaro Rasco Judd G. Rosen Sagi Shaked Barry A. Stein David L. Templer Eric Tinstman Carlos E. Verdecia

Soaring Yr1 Michael J. Carmona Michael E. Levine Michal Meiler Scott Merl

Associate Adrian Neiman Arkin David F. Baron H. Joshua Diamond Douglas F. Eaton John F. Eversole, III Eric A. Falk James F. Fee, Jr. Jeffrey P. Gale Jonathan H. Groff

Soaring Yr2 Jon Michael Herskowitz Joshua Jones

OKALOOSA Patron Dixie Dan Powell Sponsor Coy H. Browning Gillis E. Powell, Jr. Associate Michael Vincent McGrail Jonathan D. Simpson John Wellington Wesley ORANGE Benefactor J. Clancey Bounds Harvey V. Cohen Todd E. Copeland Michael Maher William R. McBride Kenneth J. McKenna Daniel Newlin Patron George H. Anderson, III Alexander Murphree Clem Tiffany M. Faddis Steven R. Maher Michael Manglardi Julio C. Martinez, Jr. Scott R. McMillen Keith R. Mitnik Mike Morgan C. Richard Newsome David A. Paul Armando R. Payas Paul C. Perkins, Jr. | November/December 2017 | 67

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EAGLESPOTLIGHT Sponsor Michael K. Bailey Michael V. Barszcz, M.D., J.D. Richard W. Bates Christopher Vincent Carlyle Nathan P. Carter Thomas DeLattre Carlos R. Diez Arguelles Eric Harald Faddis Gregorio Antonio Francis Ronald Sharpless Gilbert P. Alexander Gillen Robert F. Green David R. Heil Jason Paul Herman Steven W. Igou Andrew F. Knopf Jon Lambe Allison McMillen Robert Frank Melton, II J. Scott Murphy Pamela Ann Padilla Nicholas P. Panagakis Anthony F. Sos Piercy J. Stakelum, IV William D. Umansky Glen D. Wieland Melvin Bowen Wright Associate W. Riley Allen Joshua Alvarez Andone Matthew S. Aungst Geoffrey Bichler Patrick J. Brandt Vanessa Brice Mark A. Cederberg Eric W. Deming James J. Dye Jason R. Fraxedas Michael T. Gibson Jonathan T. Gilbert Lee Jacobson Jeremiah E. Jaspon Glenn M. Klausman Brian Lamb Alan J. Landerman Adam Ross Littman Paolo Longo, Jr. Fermin Lopez James Tyrone Lynch Gregory C. Maaswinkel W. Clay Mitchell, Jr. Katie S. Monroe Thomas E. Mooney William Ourand Jason Alan Paul Ryan Rudd Lisa Finaldi Simmons Richard B. Troutman Mallory R. Widgren John C. Willis, IV Soaring Yr2 Cassidy Perdue

Soaring Yr1 Scott Christopher Adams Chelsea N. Bogdan Amanda R. Dunn N. Ryan LaBar Fay O. Pappas PALM BEACH Founder Theodore J. Leopold Lake H. Lytal, III Joseph A. Osborne Christian D. Searcy Benefactor F. Gregory Barnhart Laurie J. Briggs Mark W. Clark Fred A. Cunningham Sean C. Domnick Leslie Mitchell Kroeger Jeanmarie Whalen Patron Robert T. Bergin, Jr. Marc C. Brotman Philip M. Burlington Gary M. Cohen Adam S. Doner Gary J. Drucker Theodore S. Forman Brenda S. Fulmer David H. Gold Craig M. Goldenfarb Robert E. Gordon Christopher M. Larmoyeux Jeffrey M. Liggio Andrew A. Norden Joseph N. Nusbaum Gary W. Roberts Bard D. Rockenbach Eric Romano John Scarola Richard D. Schuler Richard W. Slawson Scott B. Smith Patrick J. Tighe Jason D. Weisser James D. Wilkerson, Jr. David J. Zappitell Sponsor Nelson E. Baez T. Hardee Bass, III Michael V. Baxter J. Robert Bell, III Michael J. Celeste, Jr. Arye P. Corbett Michelle N. DeLong Jarrett Lee DeLuca Brian R. Denney Natasha Diemer Michael T. Dolce Marci Ball Elordi David Eltringham

Jason Fagnano Brett K. Findler Scott Mitchell Fischer Donald R. Fountain, Jr. Steven L. Frankl Todd Fronrath Mariano Garcia David J. Glatthorn Michael K. Grife Howard S. Grossman Jason J. Guari Andrew A. Harris Matthew E. Haynes Adam Hecht Jack P. Hill Lance C. Ivey Nicholas C. Johnson Darla Keen W. Hampton Keen Christopher J. Keller David Michael Kerner Darryl B. Kogan Ethan F. Kominsky Howard S. Krooks M. Nicole Kruegel Nancy La Vista Brian Frank LaBovick Joseph B. Landy Adam J. Langino Stephan Le Clainche Darryl L. Lewis Olivia D. Liggio Julie H. Littky Rubin Scott C. Murray Michael J. Overbeck Robert L. Paulk, III David C. Prather Poorad Razavi Rafael J. Roca Ami Romanelli John F. Romano Todd Romano David J. Sales Louis M. Silber Kevin Smith Sorraya M. Solages Jones Geoff S. Stahl Karen E. Terry Daniel G. Williams William S. Williams Gregory M. Yaffa Associate Rosalyn Sia Baker Barnes Ronald Bogani Michael Brevda Kelsey Carol Burke John Alexander Caracuzzo Charles Edward Cartwright William Michael Chapman Samuel S. Cohen Jordan A. Dulcie Michael Seth Elstein Stephen G. Fischer Corey B. Friedman

Adriana Gonzalez Marjorie Gadarian Graham Brian Guralnick David J. Halberg Mara R.P. Hatfield Gregory P. Huber Peter Hunt Kelly Hyman Dunia A. Ibrahim Thomas Joseph Jerla, Jr. Carlos J. Jimenez J. Scott Keller Ian M. Kirtman Matthew D. Kobren Michael Hamilton Kugler Scott A. Leaser Andrea Lewis Jennifer M. Lipinski Jeffrey Mansell Hali Marsocci Diana L. Martin Jason Anthony McIntosh Chase Nugent William W. Price Susan B. Ramsey J. Freddy Rhoads Edward V. Ricci, Jr. Thomas A. Robes Jose G. Rodriguez Matthew Schwencke Gregory Scott Richard K. Slinkman Kerri C. Smith Salesia V. Smith Gordon Anthony Michael Stella David P. Vitale, Jr. Donald J. Ward, III C. Calvin Warriner, III Mark L. Weinstein Adam G. Werner Dean T. Xenick Scott Young Gabriel F. Zambrano Greg Zele Boris L. Zhadanovskiy Soaring Yr1 Jonathan Charles Chane Timothy Charles Felice Drew L. Kapneck Spencer T. Kuvin Scott Perry Ben J. Whitman Joshua Winegar PASCO Benefactor James Lawrence Magazine Sponsor Jeff Lucas PINELLAS Founder Francoise M. Haasch

68 | November/December 2017 |

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Benefactor Thomas W. Carey Patron Erik G. Abrahamson Joseph W. Chambers Scott R. Jeeves Steven C. Ruth Kent G. Whittemore

Sponsor Stephen K. Brooks M. Lance Holden Kevin Humphries R. Kent Lilly Daniel D. Moody Spencer L. Pastorin Sherri Lynn Scarborough Robert G. Thornhill, III

Sponsor Jeffrey Chambers Jodi Leisure Joseph H. Saunders John Staunton Mark Zamora

Soaring Yr2 David Anderson

Associate Andrew Matthew Bennett Matthew S. Carney William R. Daniel Royce C. Haddad, Jr. Patrick W. Harland, Jr. Scott T. Johni Scott Richard Marshall Katherine Neal Robert J. Shuttera Melissa D. Solevilla

SARASOTA Patron Dan B.V. Dannheisser, III Gary Jodat James Keim Damian B. Mallard

POLK Founder Douglas K. Burnetti Patron David Corey Dismuke John W. Frost, II Mark Alexander Sessums

SANTA ROSA Benefactor Robert J. Mayes

Sponsor Stephen M. Fernandez David L. Goldman William E. Partridge M. David Shapiro Bernard F. Walsh Associate Riccardo D. Arcaro Kamila Losey Brannan Rosemary B. Eure Darren M. Finebloom Barbara H. Gormley

Sara B. Mallard Michael T. Murphy Alan L. Perez Matthew Ronald Rheingans Joshua H. Rosen Marjorie A. Schmoyer F. Scott Westheimer Soaring Yr1 Patrick Stephen McArdle SEMINOLE Patron Jessica J. Gonzalez Monge Mark A. Nation Associate Michael Donald Cerasa Shannon P. Liatsos Justin Howard Presser Kellye A. Shoemaker James G. Vickaryous Deborah Gallagher Warner Scot D. Warner ST. JOHNS Sponsor Philip S. Kinney Associate Daniel A. Mowrey

Patron Roger N. Messer Associate Taylor Hoskins Jeffrey R. Rollins VOLUSIA Sponsor Ward T. Berg Kelly H. Chanfrau W. M. Chanfrau, Sr. William M. Chanfrau, Jr. Luis R. Gracia Rick Kolodinsky Harlan L. Paul Steven L. Sands Allan L. Ziffra Associate Keith C. Warnock WALTON Sponsor John W. Roberts FULTON, GA Patron Christopher Chestnut As of 12/6/17

ST. LUCIE Benefactor Stephen P. Hoskins

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In recognition for unwavering commitment to the EAGLE program, we recognize the following upgraded, new or returning EAGLE members. FOUNDER – $25,000

PATRON – $5,000

George H. Anderson, III Recruited by Tiffany M. Faddis

Aaron S. Feuer Recruited by Robert Mayer Rubenstein

Neal W. Hirschfeld Recruited by Fred A. Cunningham

Daniel A. Iracki Upgraded by Matthew Nichols Posgay

Gary Jodat Recruited by Damian B. Mallard

James Keim Recruited by Damian B. Mallard

Matthew Nichols Posgay Upgraded by Stephen Watrel

Dixie Dan Powell Recruited by Virginia M. Buchanan and J. Alistair McKenzie

Anthony Quackenbush Upgraded by Lake H. Lytal, III

Gloria Seidule Upgraded by Stephen P. Hoskins

Stuart N. Ratzan Upgraded by James W. Gustafson, Jr.

ADVOCATE – $15,000

Howard C. Coker

Upgraded by Matthew Nichols Posgay

BENEFACTOR – $10,000

Samuel W. Bearman Upgraded

70 | November/December 2017 |

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SPONSOR – $3,000

Fraz Ahmed Recruited by Matthew Nichols Posgay Barry B. Ansbacher Recruited by Howard C. Coker Bobby J. Bradford Recruited by Anthony Quackenbush Matthew Carrillo Upgraded by Richard E. Chait David M. Frank Recruited by James W. Gustafson, Jr. and Paul D. Jess Steven L. Frankl Recruited by Fred A. Cunningham

Jason Paul Herman Upgraded by Tiffany M. Faddis Kevin Humphries Recruited by David Corey Dismuke Jon Lambe Recruited by Tiffany M. Faddis Joseph B. Landy Recruited by Adriana Gonzalez and Peter Hunt Joseph A. Linnehan Recruited by Damian B. Mallard

SPONSOR–$3,000 Jeff Lucas

Judd G. Rosen Recruited by Fred A. Cunningham Philip J. Slotnick Recruited by David Corey Dismuke Anthony F. Sos Recruited by Nathan P. Carter and Troy Rafferty Piercy J. Stakelum, IV Recruited by Nathan P. Carter John Clint Wallace Recruited by Matthew K. Foster

Recruited by James Lawrence Magazine

ASSOCIATE – $1,500 Andrew Matthew Bennett Recruited by Hendrik Uiterwyk

Joshua Hertz Recruited by Gregory M. Yaffa

Carl Edward Reynolds, III Recruited by Bernard F. Walsh

Joseph J. Bernardo Recruited by Damian B. Mallard

Laurence Huttman Recruited by Anthony Quackenbush

Matthew Ronald Rheingans Recruited by Damian B. Mallard

Donald F. Black Recruited by James R. Holland, II

Lisa Ann Kalo Recruited by Damian B. Mallard

Jose G. Rodriguez

Bill Cash, III Recruited by Troy Rafferty

Jacqulyn Mack Recruited by Damian B. Mallard

Douglas F. Eaton Recruited by Gregory M. Yaffa

Vidian Mallard Recruited by Damian B. Mallard

Darren M. Finebloom Recruited by Damian B. Mallard

Leonard A. McCue Recruited by Bernard F. Walsh

Jeffrey P. Gale

N. Brook Nutter Recruited by James W. Guarnieri, Jr.

Holt Harrell Recruited by James R. Holland, II Julie Marie Harrell Recruited by James R. Holland, II

Christopher G. Paulos Recruited by Troy Rafferty Geoffrey David Pelosi Recruited by Joseph N. Nusbaum

Jeffrey R. Rollins Recruited by Marci Ball Elordi Joshua H. Rosen Recruited by Damian B. Mallard Marjorie A. Schmoyer Recruited by Damian B. Mallard Richard Bodin Sharp Recruited by Damian B. Mallard Rodolfo Suarez, Jr. Recruited by Anthony Quackenbush Dean T. Xenick Recruited by Lake H. Lytal, III | November/December 2017 | 71

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EAGLESPOTLIGHT SOARING–Yr 2 Janeen M. Kirch Recruited by Matthew Nichols Posgay

SOARING–Yr1 Jonathan Charles Chane Recruited by Peter Hunt

Timothy Charles Felice Recruited by Peter Hunt

Kent Asbury Eadler Recruited by Christopher P. Janes

Spencer T. Kuvin Recruited by Peter Hunt

William C. Lewis Recruited by Damian B. Mallard

Joshua Winegar Recruited by Michael Brevda

Scott Merl Recruited by Joseph N. Nusbaum


Recruited by Eric Romano and Carter Scott


Recruiting Value

# of Recruits

Lake H. Lytal, III $44,750 Dale M. Swope $40,000 Curry G. Pajcic $29,500 Matthew K. Foster $29,000 Damian B. Mallard $28,000 James W. Gustafson, Jr. $18,000 Richard E. Chait $15,500 Matthew Nichols Posgay $13,000 Fred A. Cunningham $12,500 Tiffany M. Faddis $12,500 Thomas W. Carey $12,000 Hendrik Uiterwyk $11,500 Gregory M. Yaffa $11,000 James W. Guarnieri, Jr. $9,500 Fermin Lopez $9,500 Peter Hunt $9,250 Hubert R. Brown $9,000 Cassidy Perdue $9,000 Robert Mayer Rubenstein $8,500 James Lawrence Magazine $8,000 Nathan P. Carter $7,500 H. L. (Larry) Perry $7,000 Vanessa Brice $6,000 David Corey Dismuke $6,000 Anthony Quackenbush $6,000 Brenda S. Fulmer $5,500 Paul M. Anderson $5,000 Eric Romano $5,000 November_December_12_14_17.indd 72

3 1 10 8 13 3 6 2 3 3 8 3 4 4 4 5 3 6 1 2 3 3 2 2 3 1 1 1

Recruiter Name

Since May 1, 2016

Recruiting Value

# of Recruits

Carter Scott $5,000 1 Jonathan T. Gilbert $4,500 3 James R. Holland, II $4,500 3 J. Alistair McKenzie $4,500 1 Troy Rafferty $4,500 3 Laurie J. Briggs $3,000 2 Sean C. Domnick $3,000 1 Vivian H. Fazio $3,000 1 Christopher Ligori $3,000 1 Todd Jordan Michaels $3,000 1 Bernard F. Walsh $3,000 2 Ben J. Whitman $3,000 1 David J. Zappitell $3,000 2 Joseph N. Nusbaum $2,700 2 Virginia M. Buchanan $2,500 1 Waylon Thompson $2,500 1 Michael Brevda $1,500 1 Marci Ball Elordi $1,500 1 Philip A. Gold $1,500 1 Adriana Gonzalez $1,500 1 Celene Humphries $1,500 1 Christopher P. Janes $1,500 1 Paul D. Jess $1,500 1 Jason F. Lamoureux $1,500 1 Skip Pita $1,500 1 Kimberly J. Syfrett $1,500 1 James G. Vickaryous $1,500 1 As of 12/6/17

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Index Appeals, practice tips for preserving a good record on appeal...48 Arbitration, waiver, lawsuit which was in part based on arbitrable issues arising from a law firm’s partnership agreement waived arbitration of otherwise arbitrable counterclaims…16 Attorneys conflict, client loyalty and appearance of impropriety are not standards for recusal…14 discipline, client solicitation…12 fees, contingency fee multiplier, award of multiplier at trial level is not res judicata requiring multiplier on appellate fees for litigating amount of fees…16 fees, contingency fee multiplier, requirement of “rare” or “exceptional” circumstances rejected…12 fees, contingency multipliers, recent Supreme Court case levels playing field... 18 fees, proposal for settlement, provision for a potential refund did not negate that there was an appropriate apportionment…15 fees, proposal for settlement, recent multi-defendant cases...23 fees, risk multiplier, fee agreement that obligated client to pay attorney’s normal hourly rate was not a partial contingency fee agreement…15 fees, sanctions, §57.105 award inappropriate where arguable basis for claims in law and fact…16 short-term limited legal services programs, rules relating to conflicts and client consent adopted…12 Auto UM bad faith, waiver of objection re improperly served civil remedy notice...22 UM, excess carrier does not get credit for primary UM payout...22 UM, federal jurisdictional threshold may not be a bright-line...23 Bankruptcy, tort claim, bankruptcy estate can pursue legal malpractice claim arising from judgment that precipitated the bankruptcy…16 Civil Procedure final judgments, court may amend on its own initiative without motion...43 juries, law re read-backs of testimony has radically changed...40 relief under Rule 1.540 for fraud, full evidentiary hearing required...43 CLE, details of Workhorse... 10 Closing Argument, invoking other fact finders and authorities, practice tips...44 Contempt, direct criminal, error to convict for intoxication in court where judge did not observe man drink or behave inappropriately…15 Costs, fact witnesses, question certified re whether they can be paid for assistance with case and discovery preparation…16 Evidence, future medical expenses, discussion of standard for “reasonable certainty”...36 Hospital Liens, special act providing lien for public hospital, unconstitutional as providing for a lien based on a private contract and impairing obligation of contract…16

Immunity, Stand Your Ground, determination of immunity to a defendant in a criminal proceeding does not confer immunity in a civil proceeding…12 Judges, discipline, longstanding adversarial and contentious relationship between judge and attorney…13 Jurors, challenges, race-neutral reason, nonverbal behavior must be observed by judge or supported by record evidence…14 Jury Instructions, civil, amendments re wrongful death damages and believability of witnesses…14 Legislation, upcoming 2018 Session provides opportunities...8 Legislature, 2018 issues, 2017-18 committee meeting and Session dates...14 Medical Malpractic discovery, Amendment 7 eliminates all discovery restrictions on any records relating to any adverse medical incident…13 discovery, statutory provisions re ex parte interviews held violative of right to privacy and access to courts…14 discovery, Supreme Court holds ex parte communications with treating physicians are unconstitutional...30, 43 discovery, Supreme Court holds external peer review reports are discoverable under Amendment 7...31 fall when getting off an examining table, ordinary negligence rather than Medical Malpractice...31 Parties, death of party, suggestion of death must be filed and served…14 Practice Tips, preparing for your first trial...52 Practice, excusable neglect, failure to calendar deadline because of hurricane prep...20 Products Liability pharmaceuticals, discussion of compulsive behavior caused by Abilify...24 Takata airbags, engagement in bankruptcy proceedings necessary to protect clients’ rights... 32 Sanctions attorney fees, award against expert witness resembled indirect criminal contempt and required due process protections…16 §57.107, costs in form of expert witness fees not recoverable... 20 Settlements, discussion of risks associated with “recycled payment streams” vs. structured settlements...54 Sovereign Immunity, inline skate park, statute limiting governmental liability in such areas does not establish liability for injuries suffered while skating in other areas…15 | November/December 2017 | 73

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AdvertisersIndex ADR SERVICES Upchurch, Watson, White & Max.............................................. ..... inside back cover ATTORNEY ADVERTISING Baron and Herskowitz................................................................... 33 Brannock and Humphries............................................................... 5 Cohen Milstein............................................................................. 51 Craig Goldenfarb P.A.................................................................... 57 The Liquor Law Center................................................................. 37 Terrell Hogan................................................................................ 65

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BOOKS Mike Papantonio.......................................................................... 25

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Just as a ďŹ sherman assembles everything he needs to pursue a deceptive catch, Larry Watson approaches a dispute with all the equipment needed to achieve even the most elusive resolution. His tackle box has all the necessary tools to resolve conict without resorting to litigation, or to streamline any litigation that must occur. For more information about Upchurch Watson White & Max, visit or call (800) 863-1462.

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PRSRT STD U.S. Postage PAID Tallahassee, FL Permit #111

Florida Justice Association 218 South Monroe Street Tallahassee, Florida 32301 (850) 224-9403 NOVEMBER/DECEMBER 2017 Change Service Requested




The Florida Justice Association stands in the breach, protecting the rights of everyday citizens and maintaining a civil justice system that provides actual justice. Jimmy Gustafson, Searcy Denney Scarola Barnhart & Shipley PA

Lobbyists for big business and big insurance corporations attempt to force tort reform bills through the Legislature that would destroy the civil justice system and take away the ability of everyday citizens to hold them accountable under the law. Each year, the Florida Justice Association stands in the breach, protecting the rights of everyday citizens and maintaining a civil justice system that provides actual justice. EAGLE makes that possible. Support EAGLE, and the Florida Justice Association will continue to protect a civil justice system that works for all.

MAKE AN EAGLE PLEDGE TODAY! For more information on EAGLE benefits, pledge levels, or to download the pledge form, go online to the FJA website, navigate to the About FJA tab, and then click on EAGLE. EAGLE Department @ (850) 521-1096 November_December_12_14_17.indd 76

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