FJA Journal - November/December 2018

JOURNAL FLORIDA JUSTICE ASSOCIATION

® Florida Justice Association • November/December 2018 • #605 ™

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NOVEMBER/DECEMBER 2018–NO. 605 March 2014

March 2014

CONTENTS HIGHLIGHTS

PRESIDENT’S MESSAGE

Election 2018 — The Voters Have Spoken

pg 8

20

Federal takeover of Florida common law bad faith rejected by Florida Supreme Court

36

Personal jurisdiction in products liability cases

42

Recent changes affecting PTSD benefits for first responders

46

FRYE returns!

54

Tips for the practitioner regarding the function of and rules governing opening statement

58

Keeping your personal injury case out of compelled arbitration in premises and vehicle cases

IN THIS ISSUE LET’S GET READY TO WORK

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pg 14

Don’t miss it! John Romano’s This seminar is jam-packed with valuable information 2019 Workhorse Seminar — and innovative ideas that will give you a concrete competitive advantage. Your practice, your clients, and your career will February 19-22 in Orlando greatly benefit from the comprehensive advanced legal training this seminar provides.

JOHN ROMANO

FOUNDER AND CHAIR • ROMANO LAW GROUP • WEST PALM BEACH

WORKHORSE John Romano’s

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Save the date to attend our premier FJA John Romano’s Workhorse Seminar®. Our live CLE event has provided FJA Members with advanced legal training from the best plaintiff attorneys in Florida and in the country. The 33rd Annual Seminar will provide the best innovative ideas to give you the competitive advantage you need to win your cases and the strategies, tips and proven results from other attorneys.

REGISTER ONLINE @ FLORIDAJUSTICEASSOCIATION.ORG BEFORE DECEMBER 31ST FOR EARLY BIRD PRICING!

Onslaught of the Drones: Discovery Against Mass Tort Plaintiffs and How to Survive It

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11/2/2018 9:52:06 AM

8 12 14 16

20 24 28 34 36 42 46 50 54

President’s Message — Trey Lytal Executive Director’s Message — Paul Jess Special Focus: Workhorse Cases and Commentaries — Kenneth D. Kranz 19 Legislative Notes Tips for Auto Practitioners — Dale M. Swope Insurance — Richard M. Benrubi Mass Torts — Bill Cash III Medical Malpractice — Scott R. McMillen and Allison C. McMillen Products Liability — Leslie M. Kroeger, Adam J. Langino and Diana L. Martin Workers’ Compensation — Richard E. Chait and Mark A. Touby Evidence — Matt Schultz Civil Procedure — Roy D. Wasson Closing Arguments — Philip M. Burlington, Barbara Green and Christopher V. Carlyle 58 FJA Young Lawyers Section — Shane Newlands 62 Member Outreach 66 EAGLE Spotlight 68 Index

2018-2019 FJA OFFICERS, EXECUTIVE COMMITTEE AND BOARD OF DIRECTORS PRESIDENT Lake H. (Trey) Lytal, III

IMMEDIATE PAST PRESIDENT Dale M. Swope

PRESIDENT-ELECT Leslie Mitchell Kroeger

EXECUTIVE DIRECTOR Paul Jess

TREASURER Eric Romano

EXECUTIVE COMMITTEE Laurie J. Briggs Richard E. Chait Jason F. Lamoureux Christopher N. Ligori Todd J. Michaels

SECRETARY Tiffany M. Faddis

If you are a Paralegal Member of the FJATM, your Membership Includes Access to the Paralegal List Server Network with other FJA paralegal

DIRECTORS 2018-2020 Laurie J. Briggs Danielle A. Cohen David C. Dismuke Elizabeth Finizio James L. Magazine Allison McMillen Michal Meiler Matthew N. Posgay Anthony Quackenbush Anthony Joseph Soto Daniel Vazquez Steve Watrel Ben J. Whitman

WORKERS’ COMPENSATION SECTION Richard E. Chait

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

AAJ BOARD OF GOVERNORS Brenda Fulmer Rodney G. Gregory James R. Holland Ricardo Martinez-Cid Patrick S. Montoya Troy Rafferty Herman J. Russomanno Jeanmarie Whalen Edward H. Zebersky

DIRECTORS AT LARGE Thomas W. Carey Matthew E. Kaplan J. Alistair McKenzie H.L. (Larry) Perry Jocelyn Santana PRESIDENTIAL APPOINTMENTS Nicholas C. Johnson Daniel A. Mowrey AMICUS CURIAE COMMITTEE Phil M. Burlington

YOUNG LAWYERS SECTION Christopher J. Keller Carter Scott WOMEN’S CAUCUS Kerri C. Smith Carrie Mendrick Roane AAJ OFFICER Sean C. Domnick

AAJ STATE DELEGATES Clancey Bounds Jack Hickey Daryl D. Parks LOCAL TLA REPRESENTATIVES BCJA - Eric Scott Rosen CCJA - Kimberly Hogan 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

APPELLATE PRACTICE SECTION Celene Humphries

members and ask your most pressing questions. To sign up for the

JOURNAL STAFF

Paralegal List Server, contact the FJA

EDITOR-IN-CHIEF Kenneth D. Kranz

Membership Department at (850) 521-1093.

JOURNAL COORDINATOR Jan Brown

Journal is published by Innovative Publishing for FJA. Innovative Publishing specializes in creating custom publications for associations.

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PRESIDENT’SMESSAGE

THE VOTERS HAVE SPOKEN

by Trey Lytal, FJA President

There is much to say about the 2018 election cycle. As you will read below, there are many accomplishments of which we can all be proud.

We have members who are disappointed in the outcome of this cycle and others who are elated, but one thing that I am certain of is that this organization has never been stronger. From my fellow leaders to the newest members to every one of our staff members, everyone did their part to attempt success during this election cycle — there was no different strategy that we could have employed for better gains than that which we took, nor more that could have been done by nary an individual.

An election is never just about the day and a single outcome. Rather, it is about the collective efforts that create the results. With that, I couldn’t be more thankful and express more humility than that which is truly deserved by everyone reading this article. We are all advocates and as such, we all advocated during these elections for a variety of outcomes that have made us the strong group we are, and for that I simply say, “thank you.”

Going into the 2018 election cycle, seasoned political pundits expected the margin of victory in races up and down the ballot would be paper thin. After all, with Florida being America’s electoral purple poster child, it came as little surprise that the races for governor, U.S. Senate, agriculture commissioner, and three legislative races ended up in recounts.

The Florida Justice Association is the leading civil justice advocacy organization in our state. We are a non-partisan organization. Our strength comes from the diverse backgrounds and political ideology of our members — with rock-ribbed conservatives and life-long progressives united under one cause, the defense of civil justice.

The FJ PAC, the FJA’s political arm, is a bipartisan group of trustees that support candidates based on issues that impact Florida’s consumers, patients, drivers and families. The 2018 cycle was no different in that we saw gains of pro-civil justice candidates, not tied to any one party.

Just like the National Rifle Association is organized around the protection of people’s Second Amendment rights, we also are committed to the protection of citizens’ constitutional rights. As trial attorneys, 8 | November/December 2018 | www.FloridaJusticeAssociation.org

we are guided by a constitutional creed to protect Floridians’ access to the courts and a civil trial by jury guaranteed under the Seventh Amendment of the U.S. Constitution and the Florida Constitution.

We proudly support candidates who share our bedrock principle of defending Floridians’ right to seek civil justice accountability.

Florida Justice PAC Made a Difference in 2018

We are proud of the commitment of time, talent, and treasure FJA members made to the FJ PAC during the 2018 campaign. Through the FJ PAC, as well as the direct contributions of individual FJA members, Florida’s civil justice community provided candidates with significant support during the 2018 election cycle.

Much of the money we committed went toward funding campaign advertising to increase voter awareness and field operations to target and motivate voters to cast a ballot. Voters certainly participated this year. According to the Florida Division of Elections, more than 8.3 million Floridians voted, with turnout exceeding 62.5 percent. That’s up from 51 percent in 2014 and stands as the best midterm turnout since 1994, when turnout was 66 percent.

Money Makes the Campaigns Go ’Round

The cost of campaigns continues to rise cycle after cycle.

There are 13.3 million registered voters in our state living in 10 media markets across two time zones. For candidates running for office, whether it’s a legislative seat or a marquee statewide race, Florida’s size and the diversity of the state’s electorate mean they have to raise large amounts of money just to be competitive in Florida.

According to advertising spending data from Advertising Analytics, three Florida markets ranked in the top 10 markets overall in terms of political ad spending. Orlando ranked No. 1 with $110 million spent, Tampa Bay came in at No. 5 with $99 million spent, and Miami/Ft. Lauderdale ranked No. 7 with $80 million spent.

According to NBC, in terms of advertising spending, Florida’s gubernatorial ($181 million) and U.S. Senate ($173 million) races were the most expensive midterm races in the country. Advertising Analytics also notes that, with $473 million, Florida had the most spending in the nation and made up nearly 15 percent of all political ad money placed this year. California came in second with $200.8 million spent.

The past three gubernatorial elections in Florida have been historically tight, with this year’s the tightest of the bunch. After a mandatory machine recount, Gov.-Elect Ron DeSantis defeated Tallahassee Mayor Andrew Gillum by .41 percent (33,683 vote margin) with 8.2 million votes cast. Rick Scott defeated Charlie Crist in 2014 by 1.13 percent with 5.7 million votes cast and in 2010 he defeated Alex Sink by 1.19 percent with 5.2 million votes cast.

In 2017, Harold Orndorff, III, of Daytona State College examined the impact of campaign financing in the Journal of Florida Studies. Looking at the results of Florida’s 2014 gubernatorial race, he found, “The data I have gathered — electoral totals, campaign monies spent, and electoral victory — suggests that it is connected to campaign spending. Such a hypothesis should not be … surprising. A major theme in the political science literature is the role of financing in electoral victory. Overall, the evidence indicates that campaign spending has an important effect on voter choice, regardless of other factors (Squire, 1995; Bardwell, 2003).”

Orndorff found, starting with the 1998 election and ending with the 2014 race, (with the exception of 2002’s Jeb Bush/Bill McBride race) the candidate who spent the most per vote won the governor’s race.

Like Hyman Roth famously said to Michael Corleone in the film The Godfather Part II, “This is the business we’ve chosen.” To make a difference in the halls of the Capitol in defense of civil justice for our clients and practices, we must be involved in the increasingly expensive business of politics.

I deeply appreciate how FJA members stepped up to the task and brought incredible energy, effort, and resources to the campaign.

Along with the stalwart firms who selflessly contributed to the effort, I’m thankful for the individual members who engaged in the FJ PAC’s efforts. No matter if they contributed $25, $2,500, or even $25,000, they helped shoulder the effort and, for that leadership, I’m incredibly grateful. We need to generate more of this determination, sacrifice, and commitment among more of our members as we move into the next legislative session and the 2020 election cycle.

Legislative Action

Florida Justice PAC provided the winning edge for many candidates in the primaries and in the general election.

The stakes were high this election season, and so were the opportunities.

For civil justice advocates, the Florida Legislature is where positive reform ideas like mandatory bodily injury auto insurance reform will begin. It’s also where large corporations and big insurance companies will launch their attacks on Floridians’ rights.

Florida’s constitutional civil justice rights have survived many attacks from well-financed corporations, big insurance companies, and unfriendly elected officials in years past. We’ve demonstrated on many occasions that our success in protecting civil justice does not hinge on who wins or loses the governor’s race. The number of civil justice champions serving in the Florida Legislature is what makes a difference, led by the presiding officers of their respective chambers. In the legislature, a key issue critical to civil justice can come down to one

www.FloridaJusticeAssociation.org | November/December 2018 | 9

PRESIDENT’SMESSAGE

vote on a five-member committee. During this election, we worked to win that vote by increasing the number of civil justice champions in the legislature.

That goal stood as a key element of our strategy to defend your clients and practices, and to achieve it we executed a multifaceted strategy to not only protect our friends currently serving in the Florida Legislature but also to multiply our forces by electing more civil justice leaders to the Florida House of Representatives and the Florida Senate.

FJ PAC had great success during the 2018 cycle. Voters elected or re-elected six FJA members. FJ PAC built on the incredible success of our six 2017/18 special election victories. Looking at the campaigns where the FJ PAC engaged, 78.95 percent of supported Florida Senate/ House primary candidates won and 74.65 percent of supported Florida Senate/House general election candidates won.

We are proud of the amazing victories we achieved this year. We are proud to have made a difference in the election of a bipartisan roster of high-quality candidates who will serve in the 2018-2020 Florida Legislature.

We continued to forge a stronger relationship with the House Speaker Jose Oliva and the leadership of the Florida House of Representatives in the Republican majority and Democratic minority caucuses.

In the Florida Senate, we worked to develop new friendships while strengthening existing relationships. The friendly and longstanding relationship with Senate President Bill Galvano that we all appreciate goes as far back as 2002, with some of our greatest leaders considering him to be a true friend. Having a lawyer who has a deep understanding and experience within the civil justice system leading the Senate is a true boon to Florida.

But, because I believe the old saying that strength respects strength, when we saw an opportunity to increase the ranks of civil justice champions in the legislature, as with Senate District 18 in Hillsborough County, we fully engaged

As House Minority Leader, State Rep. Janet Cruz was a trusted friend of the courts. Electing her to the Florida Senate was a priority for the 2018 election. Her opponent, Sen. Dana Young, had a well-financed campaign with large dollar contributions from Florida’s deep-pocket corporate and insurance interests. State Rep. Cruz has unofficially won this election by a 376-vote margin (pending a recount) out of 207,626 votes cast.

FJA’s influence in this achievement will provide a reminder of the great impact the FJ PAC has when we engage in a campaign.

Following through on the gains we have achieved over the past few election cycles, we engaged in a bipartisan fashion to support the reelection of many current members of the legislature and help several new members win victories in the primaries and in the general election.

The FJ PAC is proud of the great impact we have had to improve the numbers of civil justice supporters in the Florida Senate and the House of Representatives.

Race for Governor and Cabinet

We want to salute Gov.-Elect Ron DeSantis on his hard-fought win and welcome him to his role in governing over our great state. He is a man who embodies the strong ethic of service. We deeply honor his continued role in the U.S. Navy Reserves and the time he spent in Congress in defense of America and our Constitution.

FJA also congratulates Attorney General-Elect Ashley Moody, Chief Financial Officer Jimmy Patronis, and Commissioner of Agriculture-Elect (and FJA member) Nikki Fried on their elections, and we look forward to working with them on civil justice and consumer issues.

We will support Gov.-Elect DeSantis and our state’s new leadership team every time they join us to defend Floridians’ constitutional civil justice rights. We begin this new era by offering them our hand and a pledge to work with them cooperatively in furtherance of our civil justice mission.

Thank You, FJA Members

All of our accomplishments in 2018 are the result of your strong, selfless, and enduring commitment to FJA’s civil justice mission. I want you to know the great appreciation I have for you and the personal and professional contribution you made during this important campaign.

Opportunity, fairness, and justice stand as guiding values for FJA. We are strong and stand ready to defend civil justice in our state.

The continued commitment of our members is essential as the Florida Justice Association moves forward into this historic next phase in the story of Florida. With your help, we will continue to play a leading role in writing this new chapter for our clients, firms, and profession.

10 | November/December 2018 | www.FloridaJusticeAssociation.org

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

EXECUTIVEDIRECTOR’SMESSAGE

New Leadership in Tallahassee Means All Hands On Deck for Civil Justice in 2019

by Paul Jess, Executive Director

The Florida Legislature is elected, organized, and already working in preparation for the 2019 legislative session. Likewise, FJA is ready to work with lawmakers on behalf of protecting, defending, and promoting Floridians’ civil justice rights.

Led by FJA Legislative and Political Director Jeff Porter, FJA has assembled an outstanding team of advocates to work on your behalf directly with lawmakers on civil justice issues critical to your clients, practices, and professions.

In 2019, insurance issues will command a lion’s share of attention.

We will vigorously meet the myriad of challenges that come with that key policy area. We will continue our work to promote responsible roadways in Florida by supporting lawmakers’ proposals to have Florida join the 48 other states that require drivers carry mandatory bodily injury liability auto insurance coverage.

We also will remain steadfast to defend against an expected push by the big insurance companies to destroy consumers’ protections against bad faith.

With workers’ compensation rates dropping, we will continue our strong advocacy for comprehensive, free market-based ratemaking reform as the best way to hold the line on cost increases while protecting injured workers.

We also will continue our defense against attempts to erode homeowners’ insurance rights.

Insurance issues are just a snapshot of what’s on tap for FJA to address between now and the Legislature’s adjournment Sine Die on May 3, 2019. FJA is ready for the challenge.

12 | November/December 2018 | www.FloridaJusticeAssociation.org

Our legislative team is a comparatively small band of brothers and sisters who consistently out organize, outwit, and outwork the much larger and well-financed lobbying teams assembled by corporate Florida and the big insurance interests. Driven by a passion for civil justice and fueled by the toughest public policy challenges, our talented legislative team brings energy, speed, and adaptability to every interim committee week and throughout the legislative sessions and special sessions.

As great as they are, it’s going to take more, though, to continue our strong defense against attacks on people’s access to courts. That’s where you come in.

Welcome to the Florida Capitol FJA members are a key component in our success at the Florida Capitol. Whether or not an issue is on our proactive or defensive list, developing FJA’s grassroots relationships with lawmakers is necessary to successfully navigate through the choppy political waters of the Florida Capitol.

It is critical we develop strong, respectful, and trusting relationships with lawmakers, put a name and human face on our profession, and provide them with accurate information about Floridians’ civil justice rights and how issues impact them.

We need your active involvement in building trusting and lasting relationships with new and returning lawmakers. Please visit www. flsenate.gov and www.myfloridahouse.gov and take a look at the roster of Senators and Representatives.

Take note of the members of your local delegation. Your personal connection with members of the legislature, as constituents, associates, or friends is a powerful tool at the Capitol. A lawmaker could be your friend; your children may play on the same soccer team; your spouses may be in the same book club. No matter how big or small, every connection counts and could be the key to beating back coordinated corporate and big insurance attacks on the civil justice rights of your clients.

This is a call for all hands on deck. We need you to come to Tallahassee.

When the big debates happen, and everything is on the line, you can be the difference maker in the issues that matter most to Florida’s civil justice champions. It’s a new day in Tallahassee. New leadership is taking the helm of Florida’s ship of state. For your clients, practices, and civil justice, with your active engagement, we can help steer Florida in the right direction.

You have an open invitation to come to Tallahassee and serve as an ex officio member of our legislative team.

In the months leading to the opening of session in March, lawmakers will travel to Tallahassee for committee weeks. This is where much of the legislative “sausage making” happens. Committees will take up issues, hear testimony from policy experts and interested members of the public, amend proposals, and vote to move them to the next stop in the process or kill the issue black-flag dead. This activity will continue into the official Legislative Session, whenFJA will have members engaged during special weeks as they come to Tallahassee as part of one of our designated caucus weeks.

We will put you to work when you come to Tallahassee. And we will deeply appreciate your contribution of your time. Please contact our Assistant Legislative Director Lynn McCartney at lmccartney@ floridajusticeassociation.org to learn more and schedule a time to come to Tallahassee and join our legislative advocacy team.

Introducing Florida’s New State Senators and Representatives Florida Senate Ben Albritton, Wauchula Laurie Berman, Lantana Janet Cruz, Tampa Manny Diaz, Jr., Hialeah Joe Gruters, Sarasota Gayle Harrell, Stuart Ed Hooper, Clearwater Jason Pizzo, North Miami Beach Tom Wright, New Smyrna Beach Florida House of Representatives Vance Aloupis, Miami Alex Andrade, Pensacola Melony Bell, Fort Meade Mike Beltran, Lithia Chuck Brannan, III, Macclenny James Buchannan, Osprey James Bush, III, Miami Joe Casello, Boynton Beach Nick DiCeglie, Indian Rocks Beach Fentrice Driskell, Tampa Wyman Duggan, Jacksonville Anna Eskamani, Orlando Javier Fernández, South Miami Joy Goff-Marcil, Maitland Mike Gottlieb, Davie Tommy Gregory, Sarasota Michael Grieco, Miami Beach Brett Thomas Hage, Oxford Dianne Hart, Tampa Adam Hattersley, Riverview Mike Hill, Pensacola Delores Hogan Johnson, Fort Pierce Dottie Joseph, Miami Chip LaMarca, Ft. Lauderdale Anika Omphroy, Lauderdale Lakes Toby Overdorf, Palm City Cindy Polo, Miramar Tina Polsky, Boca Raton Spencer Roach, North Fort Myers Will Robinson, Jr., Bradenton Anthony Sabatini, Howey-in-the-Hills Tyler Sirois, Cocoa David Smith, Winter Springs Geraldine Thompson, Orlando Josie Tomkow, Polk City Susan Valdez, Tampa Jennifer Webb, Gulfport Ardian Zika, Land O’ Lakes

®

Congratulations from FJA! www.FloridaJusticeAssociation.org | November/December 2018 | 13

LET’S GET READY TO WORK

“

“

This seminar is jam-packed with valuable information and innovative ideas that will give you a concrete competitive advantage. Your practice, your clients, and your career will greatly benefit from the comprehensive advanced legal training this seminar provides.

JOHN ROMANO

FOUNDER AND CHAIR • ROMANO LAW GROUP • WEST PALM BEACH

WORKHORSE John Romano’s

®

February 19-22, 2019 • Hilton Orlando Bonnet Creek

Save the date to attend our premier FJA John Romano’s Workhorse Seminar®. Our live CLE event has provided FJA Members with advanced legal training from the best plaintiff attorneys in Florida and in the country. The 33rd Annual Seminar will provide the best innovative ideas to give you the competitive advantage you need to win your cases and the strategies, tips and proven results from other attorneys.

14 | November/December | www.FloridaJusticeAssociation.org REGISTER ONLINE @2018 FLORIDAJUSTICEASSOCIATION.ORG BEFORE DECEMBER 31ST FOR EARLY BIRD PRICING!

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CASES&COMMENTARIES

In Brief

by Kenneth D. Kranz, Editor-in-Chief

The Florida Supreme Court authorized amendments to jury instructions relating to medical negligence and vicarious liability. In Re: Standard Jury Instructions in Civil Cases — Report No. 18-01, So.3d , 43 FLW S362 (Fla. 9-13-2018). The amendments to medical negligence instruction 402.4 pertain to the standard of care for affirmative medical intervention, and the amendments to instruction 402.9 are intended to provide clarification in the determination of whether an individual is an independent contractor or an employee for purposes of vicarious liability.

Supreme Court: “[T]he Fourth District erred in creating a cap on the amount of noneconomic damages a financially independent adult child may be awarded for the wrongful death of his or her parent. … Neither the Legislature nor this Court has established a cap on the amount of noneconomic damages a survivor may recover in a wrongful death action, and we decline to do so today.” Odom v. R.J. Reynolds Tobacco Co., So.3d , 43 FLW S369 (Fla. 9-20-2018). In this Engle-progeny case, the Fourth DCA overturned a multimillion-dollar noneconomic damages award to an adult child whose mother died of lung cancer. The Supreme Court found the conflict on which its jurisdiction was based arose from the DCA’s “misapplication of the abuse of discretion standard to the trial court’s denial of a motion for remittitur and creation of a bright-line cap on the amount of noneconomic damages a financially independent adult surviving child may be awarded for a wrongful death of his or her parent” that is “irreconcilable with the contrary rule of law and abuse of discretion analysis expressly 16 | November/December 2018 | www.FloridaJusticeAssociation.org

set forth in our precedent.” The Fourth DCA’s bright-line cap that the Supreme Court held impermissible was its conclusion that: “no matter how strong the emotional bond between and adult child and a decedent parent may be, an adult child who lives independent of the parent during the parent’s smoking related illness and death is not entitled to multimillion dollar compensatory damages award.”

The Supreme Court noted that in §768.21, Fla. Stat., the legislature neither imposed a cap on the amount an adult child may recover nor included a requirement that the adult child be financially dependent on the decedent at the time of the decedent’s death — “the sole requirement for an adult child to recover noneconomic damages for the wrongful death of his or her parent is that the parent must not be survived by a spouse.” The Court reaffirmed that “a verdict should only be held excessive, and thus remitted, where it ‘evinces or carries and implication of passion or prejudice, corruption, partiality, improper influences, or the like.’” It found the trial court had not abused its discretion in reviewing and rejecting the defendant’s motion for remittitur, and it rejected the Fourth DCA’s reversal of the trial court’s ruling based on the DCA’s faulty conclusion that the relationship between the adult child and her deceased mother was “not the type of relationship” that can justify a multimillion dollar noneconomic damages award. The Court also disapproved R.J. Reynolds Tobacco Co. v. Webb, 93 So.3d 331 (Fla. 1st DCA 2012), and Philip Morris USA Inc. v. Putney, 199 So.3d 465 (Fla. 4th DCA 2016) to the extent they are inconsistent. The FJA, represented by John S. Mills and Courtney Brewer, participated as Amicus Curiae.

In reversing a judgment entered in favor of the insured after a jury found that the insurer acted in bad faith in failing to settle the claim, the Fourth DCA misapplied the directed verdict standard and Supreme Court precedent relating to the fiduciary duties of insurance companies toward their insureds and improperly relied upon nonbinding federal cases that cannot be reconciled with clear Florida precedent. Harvey v.

GEICO General Ins. Co., So.3d , 43 FLW S375 (Fla. 9-20-2018).

The Court found that the Fourth DCA had not only improperly substituted its judgment for that of the jury but also improperly stated that “where the insured’s own actions or inaction result, at least in part, in an excess judgment, the insurer cannot be liable for bad faith.” As to the latter, the Court noted that this would essentially create a contributory negligence defense for insurers in bad faith cases, and it declined to “create such a defense that is so inconsistent with our well-established bad faith jurisprudence which places the focus on the actions of the insurer — not the insured.” The FJA, represented by Louis K. Rosenbloum, participated as Amicus Curiae.

The Supreme Court disbarred an attorney who, while under a 45-day suspension, failed to comply with the notification requirement and continued to engage in the practice of law by having direct contact with her clients, engaging in discussions with opposing counsel, and contacting court personnel regarding several cases in which she was counsel of record. The Florida Bar v. Bosecker, So.3d , 43 FLW S410 (Fla. 9-27-2018).

The Court also found that the attorney had engaged in misrepresentation when she advised the Court that she had notified her clients, opposing counsel and the courts of her suspension and had been dishonest in failing to promptly provide those required notifications.

Reversing the Second DCA, the Supreme Court concluded that “common knowledge and plain language demonstrate that loaders, like farm tractors and forklifts, are motor vehicles for purposes of the dangerous instrumentality doctrine.”

Newton v. Caterpillar Financial Services Corp., So.3d , 43 FLW S415 (Fla. 9-27-2018). The loader involved in this case was an 8,000-pound multi-terrain loader with a front-end bucket that was being used to lift, carry and dump debris into a box trailer on a private residential lot that was being cleared. The loader was currently set up to run on tank-style treads but could be converted to operate on tires. There was testimony that the loader could lift 2,300 pounds to a height of 9.5 feet and that its design restricted the operator’s visibility. The Court found: “Common knowledge demonstrates that a machine as powerful as a loader has the ability to cause serious injury when operated near or over a public street, just like any motor vehicle operated on a public highway.” The case arose from an injury suffered by a worker who was in the debris trailer when the operator of the loader, who did not realize the worker was there, dropped a tree stump into the trailer. The Second DCA had affirmed the trial court’s granting of summary judgment based on a finding that the loader was not a dangerous instrumentality. The Supreme Court accepted jurisdiction based on conflict with “decisions of this Court and other district courts”;

however, an extensive dissenting opinion argued that none of the decisions relied upon by the majority as grounds for jurisdiction satisfied the constitutional requirement of express and direct conflict on the same question of law.

The Supreme Court chastised the Fifth District for nitpicking settlement offers where the plaintiff’s offers to each of two defendants were identical other than the specifically designated party and the specific amount proposed. Allen v. Nunez, So.3d , 43 FLW S421 (Fla. 10-4-2018). The Court found the offers to be unambiguous and that the only reasonable interpretation of the plain language of the offers was that the plaintiff offered to settle his claims with only the defendant specified in each respective proposal. “If two codefendants each receive a proposal for settlement, in which they are specifically named, each codefendant should possess all the information necessary to determine whether to settle. … In this context, it appears disingenuous to assert that there exists a legitimate question as to whether one codefendant’s acceptance could have settled the offeror’s claim against the other codefendant.” The Court commented that the “nitpicking” of these offers by the Fifth DCA in an effort to find them ambiguous unnecessarily injected ambiguity into the proceedings and created more judicial labor, not less.

Supreme Court: “we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts” for the admissibility of expert opinion testimony based on new or novel scientific techniques.

DeLisle v. Crane Co., So.3d , 43 FLW S459 (Fla. 10-15-2018).

The Supreme Court held that Section 1 of Ch. 2013-107, Laws of Fla., which amended §90.702, Fla. Stat., to incorporate Daubert into the Florida Rules of Evidence unconstitutionally infringed on the Court’s rulemaking authority. The Court had previously declined to adopt the provision, to the extent it was procedural, as a rule. The Court noted: “Section 90.702, Florida Statutes, as amended in 2013, is not substantive. It does not create, define, or regulate a right. Indeed, while we have stated that the Florida Evidence Code contains both substantive and procedural rights, this statute is one that solely regulates the action of litigants in court proceedings.” The Court noted that Frye is inapplicable to the majority of cases because it only applies when experts render an opinion that is based upon new or novel scientific techniques; and it stated that medical causation, such as was involved in the asbestos-related mesothelioma at issue in the present case, is not new or novel and is thus not subject to a Frye analysis. The FJA, represented by Bryan S. Gowdy and Howard C. Coker, participated as Amicus Curiae.

A county judge was removed from office for misconduct during her 2016 political campaign. Inquiry Concerning a Judge No. 16534 Re: Dana Marie Santino, So.3d , 43 FLW S477 (Fla. 1019-2018). The Court found that her conduct did not evidence a present fitness to hold judicial office: “Santino’s numerous statements during her campaign evidenced a bias against criminal defendants, toward whom she imputed guilt; against criminal defense attorneys, whom she implied had some character fault because they ‘choose’ to represent criminal defendants; and in favor of victims, whom she www.FloridaJusticeAssociation.org | November/December 2018 | 17

CASES&COMMENTARIES

proceeding, they were never represented by a guardian ad litem in the present negligence case. Thus, all three prongs of the test were met for tolling the limitations period.

boasted that she worked to protect during her legal career. Such statements are sufficient to create a fear on the behalf of criminal defendants — who are entitled to a presumption of innocence under the basic tenets of our judicial system — that they would not receive a fair trial or hearing.”

The Supreme Court adopted several sets of rule amendments, all of which take effect January 1, 2019. In Re: Amendments to the Fla. Rules of Appellate Procedure — 2017 Regular Cycle Report, So.3d , 43 FLW S508 (Fla. 10-25-2018), makes various revisions to the appellate rules. In Re: Amendments to Fla. Rule of Appellate Procedure 9.800, So.3d , 43 FLW S512 (Fla. 10-25-2018) substantially updates the formats in the Uniform Citation System.

And, In Re: Amendments to the Fla. Rules of Civil Procedure, the Fla. Rules of Judicial Administration, the Fla. Rules of Criminal Procedure, and the Fla. Rules of Appellate Procedure — Electronic Service, So.3d , 43 FLW S515 (Fla. 10-25-2018) address the computation of time to respond to documents served by email.

For purposes of the statute of limitations applicable to a minor’s negligence claim, the statute was tolled while the children were in the temporary custody of their grandparents awaiting a final court decision on permanent guardianship. D.H. v. Adept Community Services, Inc., So.3d , 43 FLW S533 (Fla. 11-12018). Section 95.051(1)(h), Fla. Stat., provides that the statute of limitations is tolled by “[t]he minority or previously adjudicated incapacity of the person entitled to sue during any period of time in which a parent, guardian, or guardian ad litem does not exist, had an interest adverse to the minor or incapacitated person, or is adjudicated to be incapacitated to sue.” The Supreme Court noted that tolling the limitations period during any period in which a child lacks a person who has a duty to act in the best interests of the child protects children from the danger that their claims will be time-barred before they can be brought. Here, the Court held that the children lacked a guardian for purposes of the statute until the grandparents were appointed permanent guardians. The Court also found that the children’s mother’s interests were adverse to those of the children and, although the children were represented by a guardian ad litem in an ongoing dependency 18 | November/December 2018 | www.FloridaJusticeAssociation.org

The Fourth DCA held that a public fair association created pursuant to Part I of Ch. 616, Fla. Stat., is entitled to the limited sovereign immunity afforded by §768.28, Fla. Stat. South Florida Fair and Palm Beach County Expositions, Inc. v. Joseph, So. 3d , 43 FLW D2078 (Fla. 4th DCA 9-5-2018). The plaintiff, who was waiting with his children to ride the bumper cars at the South Florida Fair, was seriously injured when a group of teenagers attacked him after he refused to comply with their demand that he give them his watch. The trial court concluded that the fair association did not have “sufficient structural power over the [fair] to render it an instrumentality of the state” and denied the defendant’s motion for partial summary judgment. In reversing, the Fourth DCA observed that “there is no dispute” that the Florida State Fair created under Part III of Ch. 616 is entitled to sovereign immunity and that §616.19 provides that a fair association “shall be recognized as equal in dignity to the Florida State Fair and as fully recognized as the Florida State Fair.” Thus, the court reasoned: “To conclude that the Florida State Fair is entitled to the limited sovereign immunity in section 768.28(2), but a fair association is not, would fail to recognize the two as equal in dignity.”

To qualify as an Engle class member, a plaintiff must prove that the decedent was either a citizen of Florida or a resident of Florida at the time of manifestation or diagnosis of the smoking-related disease. Chacon v. Philip Morris USA, Inc., So.3d , 43 FLW D2100 (Fla. 3rd DCA 9-12-2018). The court held it is not necessary to prove that the decedent was both a citizen and a resident.

Where a defendant waived its right to arbitration by answering the initial complaint and engaging in discovery, the defendant’s right to seek arbitration was not revived by an amended complaint that did not “alter the scope or theory of the underlying litigation in an unforeseeable way.” Stankos v. Amateur Athletic Union of the United States, Inc., So.3d , 43 FLW D2117 (Fla. 4th DCA 9-12-2018). The action arose as a result of a head injury suffered by a youth during a taekwondo competition. The initial complaint alleged several claims, including negligence, “misrepresentation and concealment,” loss of filial consortium, and injunctive relief. The amended complaint added a claim for violation of a statutory provision relating to youth sports organizations and a Florida Deceptive and Unfair Trade Practices Act (FDUTPA) claim. The court noted that the statutory violation claim merely provided a basis for a finding of negligence per se based on the same set of underlying facts and the FDUTPA claim was similar to the claim relating to misrepresentation and request for injunctive relief. The court also found that the inclusion of demand for attorney’s fees in the FDUTPA claim “cannot be deemed to have materially altered the scope or theory of the litigation.”

The trial court erred in using contempt orders and writs of bodily attachment to enforce the payment of legal fees owed pursuant to a settlement agreement. Ghurair v. Zaczac, So.3d

, 43 FLW D2157 (Fla. 3rd DCA 9-20-2018). The court pointed out that the enforcement through contempt of debts not involving support violates Art. I, Sec. 11, Fla. Const., which prohibits imprisonment for debt.

A party may not expand the scope of judicial review of an arbitration agreement. National Millwork, Inc. v. ANF Group, Inc., So.3d , 43 FLW D2207 (Fla. 4th DCA 9-262018). The offending provision of the arbitration agreement provided that on review of an arbitration award, “the court shall be empowered to address on review any failure by the arbitrator(s) to properly apply Florida la[w] to the dispute.

To the extent the arbitrator(s) or the court fail to apply the law properly, the Award of the arbitrator(s) is subject to further review through the Florida appellate process.” The court found this to be unenforceable as contrary to the statutory prohibition against expansion of the scope of judicial review.

See §§682.12-.14, 20, Fla. Stat. The court deferred on the question of severability and remanded to the circuit court to determine whether the offending portions were integral to the agreement so as to render them nonseverable.

A physician being sued for medical malpractice was not entitled to a cloak of sovereign immunity under the auspices of the Florida Department of Health based on his alleged participation in the Volunteer Healthcare Provider Program where the physician never received a referral for the patient and the patient never consented to treatment under the program. Dinnerstein v. Fla. Department of Health, So.3d , 43 FLW D2209 (Fla. 4th DCA 9-26-2018).

The mother of a developmentally disabled person did not have standing to sue a law school legal clinic for alleged legal malpractice committed in the representation of the disabled person’s legal co-guardians. Driessen v. Univ. of Miami School of Law Children and Youth Law Clinic, So.3d , 43 FLW D2213 (Fla. 3rd DCA 9-26-2018). The court affirmed the trial court’s

dismissal of the complaint because the plaintiff was not the ward’s legal guardian, she did not retain the clinic to represent the ward or the ward’s legal guardians (the ward’s sister and grandfather), and she was not the intended beneficiary of the clinic’s representation of the legal guardians. The court noted that the exception to the general rule requiring privity of contract between the client and the attorney occurs when the plaintiff is the intended third-party beneficiary of the legal services. Here, however, the ward, not her mother, was the intended beneficiary of the legal services provided to the co-guardians.

An allegation of ex parte communication by a judge states a prima facie basis for disqualification; thus, where no response was filed to the Emergency Petition for Writ of Prohibition, the court granted the petition and ordered the trial judge disqualified. Haas v. Yousef, So.3d , 43 FLW D2214 (Fla. 3rd DCA 9-26-2018).

A third-party spoliation action against a defendant who negligently destroyed evidence cannot be litigated and tried at the same time as the underlying case against the tortfeasor who caused the personal injury because the spoliation case does not accrue until the underlying tort case is resolved.

Amerisure Ins. Co. v. Rodriguez, So.3d , 43 FLW D2225 (Fla. 3rd DCA 9-26-2018). The court noted that third-party spoliation claims should generally be abated or dismissed until the underlying tort claim is resolved.

KEN KRANZ, FJA JOURNAL EDITOR-IN-CHIEF

is editor-in-chief and columnist for the FJA’s bimonthly Journal. He has 40 years of legislative experience and formerly served as the senior legislative counsel with various responsibilities related to the FJA legislative activities.

LEGISLATIVE NOTES By the time you receive this, the elections will be over, the newly constituted legislature will have met in its Organizational Session on November 20, the committee structure and membership will have been determined, members will be filing bills and the first set of interim committee meetings will have already been held. There will be five more sets of committee meetings between now and the beginning of the 2019 Regular Session on March 5, and there has also been some mention of a possible special session before then to address issues related to the devastation caused by Hurricane Michael.

As a result of the 2018 elections (with the caveat that recounts are still in progress for one Senate and two House races), the membership of

the 2018-2020 Senate will consist of 23 Republicans and 17 Democrats (formerly 22/16 with two vacancies), and the House will consist of 73 Republicans and 47 Democrats (formerly 75/41 with four vacancies).

Calendar January 7-11.........................................................Committee Meetings January 22-25......................................................Committee Meetings February 4-8.........................................................Committee Meetings February 11-15....................................................Committee Meetings February 19-22....................................................Committee Meetings March 5-May 3 2019................................................... Regular Session www.FloridaJusticeAssociation.org | November/December 2018 | 19

TIPSFORAUTOPRACTITIONERS

Florida Supreme Court Pushes Back Against Federal Takeover of Common Law Bad Faith

by Dale M. Swope

For nearly a decade, Florida’s law prohibiting bad faith by insurance companies has been under assault. The legislative efforts have captured most of the attention, but the fact is that the courts — and specifically the federal courts — are where most of the damage to consumers has been done.

For all their talk of limited jurisdiction and abstention, those court have systematically debauched the common law, creating new rules by snatching snippets and soundbites from their state court context, to create what amounted to an independent federal common law.

For example, the core standard of conduct at the heart of bad faith liability has always been that an insurer commits bad faith if it fails to act fairly and honestly, and with due regard for the interests of its insured — either in failing to settle a case when it should have, or by some other means such as failing to advise the insured of the potential for an excess and the steps that insured can take to avoid it. (Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783 (Fla. 1980); (Fla. Std. Jury Instr., 404.4, Insurer’s Bad Faith — Failure to Settle).

The federal courts, however, have tried to replace that with standards that would be worthless to consumers in the real world.

For example, there is Novoa v. GEICO Indem. Co., 542 Fed. Appx. 794 (11th Cir. 2013) that suggests an insurer is liable only if it “elevated its interest above the insured’s.”

Then, taking that a step further was Cardenas v. GEICO, 760 F. Supp. 2d 1305 (Fla. M.D. 2011) that granted summary judgment because the plaintiff couldn’t show “that GEICO acted ‘solely on the basis of [GEICO’s] own interest.’” A similar justification for granting SJ appeared in Davidson v. GEICO, 422 Fed. Appx. 790 (11th Cir. 2011): “Summary judgement 20 | November/December 2018 | www.FloridaJusticeAssociation.org

in GEICO’s favor is warranted because there is a complete absence of evidence that GEICO acted solely on the basis of its own interests.”

Take a moment to consider that this is a pretty pathetic product GEICO is selling if that were truly the level of service it was required to deliver.

Then there was Feijoo v. GEICO General Insurance Company, 2017 WL 429254 (11th Cir. 2-1-2017), which basically imported the “fairly debatable” standard that lets insurers deny claims so long as they can find some justification for it — tossing to the wind any concerns about the insured’s best interest.

And, although they frequently cut and pasted the obligatory statement from Berges that of course the focus was on the conduct of the carrier, they frequently did the opposite as in McGuire v. Nationwide, F. Supp. 2d (2012 WL 712965), where they wrote critically that the attorney made no effort to negotiate the objectionable terms of the release because he was “more interested in fabricating a potential bad faith claim than protecting his client.”

And they used a misapplication of the causation element to excuse any bad faith by the carrier as in Noonan v. Vermont Mut. Ins. Co., 761 F. Supp. 2d 1330 (M.D. Fla. 2010) where summary judgment was entered even before discovery of the claims file because the trial court was convinced that any delay was not caused by the carrier, but instead by the plaintiff ’s attempts to set up a bad faith claim.

These federal theories slipped into the state common law only once, in Goheagan v. American Vehicle Ins. Co., 107 So.3d 433 (Fla. 4th DCA 2012). The alarms were sounded, the FJA and others filed amici briefs, and on rehearing the holding

was reversed, and, perhaps more importantly, all citations to these federal renegade decisions were dropped. And while the FJA did what it could to keep a spotlight on the problem, the cockroach just wouldn’t stay under our boot. See “Tips for Auto Practitioners,” March 2014 (“If you only read one case, make it Maharaj”); January/February 2017 (“Federal Court: The Insurer’s Nirvana”); March 2017 (“Bad, Bad Faith Case”).

walk away from any bad faith liability if the failure to settle was caused, to any degree, by the insured’s lack of diligence.

The Supreme Court’s holding in Harvey v. GEICO Gen. Ins. Co., So.3d , 43 FLW S375, 2018 WL 4496566 (Fla. 9-20-2018) swiftly dispatched not only that notion but all those terrible federal cases that had purported to rewrite the required standard of conduct for insurers in Florida.

Then came Harvey.

The federal cases, it said, “missed the mark” reciting the standard from Boston Old Colony, and renewing the Berges directive that the “focus of the bad faith case is on the conduct of the insurer,” not the insured.

It started off routinely enough. A tragic death case caused by a GEICO insured with liability clear enough that it was resolved against the insured only two days after the accident.

A paralegal for the plaintiff ’s lawyer (now future AAJ president, Sean Domnick), using conventional diligence for such cases, asked on first contact for a sworn statement from the insured.

She explained that this was necessary to verify the absence of additional coverage and significant leviable assets, and to rule out potentially derivative parties.

The GEICO adjuster immediately refused. It was later learned that this particular adjuster was in “impending failure” mode.

With 130 files assigned and no real assistance, her reviews had been borderline terrible, including failures to manage communications. She just did not have time to do more than write a check and move on.

So rather than discuss the required disclosures with the insured, she simply sent over a $100,000 policy limits check and perhaps hoped that would be the end of it. It wasn’t. Sean wrote to remind her of the requested statement, and again patiently explained why that would be needed to settle the case, but then heard nothing back. After weeks had passed, he filed suit and, as you would expect from a lawyer of his caliber, he obtained a jumbo-sized verdict.

What Sean could not have known is that after he wrote his follow-up reminder to attempt to effect settlement, the adjuster did speak with the insured about the statement, and he let her know that his lawyer (hired at GEICO’s suggestion) would be out of town for a few days. He specifically asked his adjuster to “Let Mr. Domnick know we’re are not ignoring him but are working on it.”

Her supervisor also told her to do, essentially, the same thing.

So did common sense. So did her duty to act diligently with respect to communications concerning claims, expressed in the Adjuster’s Code of Ethics.

But, inexcusably, she did not.

The bad faith failure to settle case was won, but the Fourth DCA reversed the judgment, infusing its opinion not only with the toxic federal cases, but with a new holding, unsupported by any in Florida law. It held, basically that the carrier could

It also rejected the causation notion saying “the carrier can’t get off the hook” just by proving some failure by the insured.

All in all, this is a fabulously important decision that should not only reaffirm the strength of the Boston Old Colony and Berges rules for bad faith, but also should tamp down the incessant attempt by federal courts who apparently think they know better about what Florida common law should be than Florida’s own Supreme Court.

In addition, the egregious performance by GEICO in this case should perfectly illustrate for the legislature why their faithful defense of the common law from the annual onslaught on insurance company lobbyists makes sense and makes for good policy for small businesses and consumers in Florida.

Thanks to past president Fred Cunningham and Perennial Amicus Czar Phil Burlington for having the courage and endurance to win this case for all of us.

Instrumental Danger

The Florida Dangerous Instrumentality doctrine was most famously applied to motor vehicles in Florida nearly a century ago in Southern Cotton Oil Co. v. Anderson, 86 So. 629 (Fla. 1920).

But its origin is older, based on the ancient concept that owners of things that can cause really bad injuries should be liable when they are carelessly handled. Things like wild animals, or dynamite, for example. See Isaacs v. Powell, 267 So.2d 864 (Fla. 2nd DCA 1972) and the Restatement of Torts, s 515.

There are a host of sound policy reasons given for the concept, and over the years it has been applied to many types of vehicles and activities, such as farm tractors, Rippy v. Shepard, 80 So.3d 305 (Fla. 2012), golf carts Meister v. Fisher, 462 So.2d 1071 (Fla. 1984); boats, Boland v. Suncoast Rent-A-Scooter, Inc., 439 So.2d 916 (Fla. 2nd DCA 1983); airplanes, Fort Myers Airways, Inc. v. American States Ins. Co., 411 So.2d 883 (Fla. 2nd DCA 1982); etc.

You might think it would be beyond argument that a front-end loader that operates either on tracks or tires, capable of lifting 2,300 pounds 9.5 feet in the air, would be an easy call. But www.FloridaJusticeAssociation.org | November/December 2018 | 21

TIPSFORAUTOPRACTITIONERS

Mr. Perez got injured on his motorcycle and sued GEICO for stacked UM benefits under the auto policy. GEICO moved for SJ on several grounds that were all denied, and the denials were affirmed on appeal.

the Supreme Court had to reverse a holding from the Second DCA that such a device was not a dangerous instrumentality.

Newton v. Caterpillar Fin. Services Corp., SC17-67, 2018 WL 4657129 (Fla. 9-27-2018).

GEICO Goes All In on a Losing Hand

GEICO insured an owner and driver who had caused $30,000 of property damage to an unoccupied vehicle — the kind of bread and butter claim new adjusters cut their teeth on.

The plaintiff offered to settle with each of the defendants, separately, by formal proposals to settle for $20,000 each. But GEICO irrationally refused to settle with either, forcing the plaintiff to trial.

GEICO must have thrown down hard on the case, because the fee award to the plaintiff for trial alone was over $300,000.

Never one to admit its mistake, GEICO then appealed to the DCA, and then beyond that, to the Supremes. The PFS’ were affirmed without any real new lessons or extension of existing law. However, we did learn something about GEICO — or maybe we already knew it.

They would rather spend probably a half-million dollars in defense — and pay the plaintiff ’s lawyer about that much, too — instead of paying a $30,000 property damage only claim.

That really is amazing, in a sad kind of way. Thank goodness for Macedo, which may bring an end to this abusive approach to claims handling, at least until GEICO figures out some new way around it to facilitate its systemic resistance to fairly paying claims.

GEICO’s UM Rejection Form Is Legally Inadequate

Mr. Perez owned a motorcycle insured with GEICO that had UM. He called GEICO to discuss insuring his three automobiles. GEICO said they normally would have discussed UM coverage, but he said they did not. An email with a passcode went to Mr. Perez’s wife, and it was then forwarded to his daughter, who apparently was charged with dealing with the purchase. In the daughter’s website session, she clicked a box rejecting UM coverage. There was a link to a UM rejection form, but that link was never opened.

22 | November/December 2018 | www.FloridaJusticeAssociation.org

One that will catch your attention was the motion based on based on the irrebutable presumption created in the eighth and ninth sentences of §627.727(1). The reasons for dissolving the presumption had nothing to do with the fact that it was “electronically signed” by clicking a button online, or that the 12-point font required by the statute would look completely different depending on the device used to display it.

It did not even have to do with the fact that the “form was ‘signed’” by a daughter, whose age is not disclosed in the opinion and who clearly never opened the page explaining what a UM waiver was.

Instead, the motion was denied on the grounds that the form GEICO has been using for years after obtaining the approval of the department of insurance had two defects.

• It said, “you are purchasing uninsured motorist limits less than your bodily injury limits when you sign this form.”

• Whereas the statute required it to say, “bodily injury liability limits.”

• It also closed with “Please read it carefully,” whilst the statute required it to say, “Please read carefully.”

In fairness, this does seem a little unfair to GEICO. But, then again, the whole idea of an irrebutable presumption that a person knowingly rejects UM coverage when he simply clicks buttons on a computer phone is a little unfair, too, so maybe it balances out.

All that said, you should not think that you will suddenly have UM coverage when you discover that this was the form used in your case. It just means GEICO won’t be getting an automatic SJ on that issue.

The carrier is still entitled to a full-blown Perry Mason-type trial on the question whether the insured actually did make a knowing rejection of coverage. The Perez case makes clear that the evidence in that trial will be the full panoply GEICO can throw at the insured to show they knew what they were doing when they bought insurance without paying premiums for UM coverage.

DALE M. SWOPE

is the founder of Swope, Rodante P.A. in Tampa. He is the immediate past president of the FJA, and founder and past president of the Tampa Bay Trial Lawyers Association. He specializes in cases involving catastrophic personal injury, wrongful death and insurance bad faith claims.

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www.FloridaJusticeAssociation.org | November/December 2018 | 23

INSURANCE

Insurance Cases

by Gregory M. Yaffa

Supreme Court of Florida: Fourth District Erred in Applying Inapplicable Federal Precedent that Misapplied Florida Bad Faith Law

Harvey v. GEICO General Insurance Company, 43 Fla. L. Weekly S375 (Fla. 9-20-2018) In this landmark case, the Supreme Court of Florida rejected the gradual divergence from Florida insurance bad faith precedent that federal courts have recently taken. Specifically, in this case, the Supreme Court of Florida framed the issue for its review as whether the Fourth District Court of Appeal misapplied the Supreme Court’s bad faith precedent and relied on inapplicable federal precedent that had misapplied Florida’s bad faith common law.

The facts of the underlying accident in this bad faith case are tragic: GEICO’s insured, Mr. James Harvey, was involved in an automobile accident with Mr. John Potts, who died from injuries sustained in the crash. Mr. Potts left behind a wife and three children. Mr. Harvey’s vehicle was registered under his name and his business’s name, and was covered by a $100,000 GEICO liability policy. Shortly after the crash, the Potts estate, represented by Sean Domnick, requested a statement from Mr. Harvey regarding the extent of his finances, whether he had additional insurance, and whether he was acting in the scope and course of his employment when the crash occurred. GEICO, however, did not promptly inform Mr. Harvey of this request. While GEICO tendered the policy limits within nine days of the accident, GEICO failed to respond to Mr. Domnick’s request for a statement from Mr. Harvey regarding his finances and insurance. Additionally, GEICO failed to communicate to Mr. Domnick that Mr. Harvey was willing to submit to the requested statement.

Due to these failures in communication by GEICO, the Potts estate returned the settlement check tendered by GEICO and sued Mr. Harvey for wrongful death. A Palm Beach County jury returned a verdict for nearly $8.5 million in May of 2011. Then, Fred Cunningham and I, on behalf of Mr. Harvey, won the subsequent bad faith case against GEICO. GEICO appealed the jury’s bad faith verdict to the Fourth District Court of Appeal, arguing that Mr. Harvey had offered insufficient evidence at trial to support his bad faith claim. The Fourth District agreed and reversed the jury’s verdict, holding that “even if the insurer’s conduct were deficient, the insurer’s actions did not cause the excess judgment rendered against the insured.” The Fourth 24 | November/December 2018 | www.FloridaJusticeAssociation.org

District based its reasoning, in part, on the Eleventh Circuit Court of Appeal’s unpublished decision in Novoa v. GEICO Indemnity Co., 542 F. App’x 794 (11th Cir. 2013), and other recent decisions from federal court which have similarly misapplied Florida bad faith law by holding that an insurer need not act prudently or even reasonably.

The Supreme Court of Florida’s opinion in Harvey makes clear that an insurer’s obligations to its insured do not end by tendering the policy limits, but “continues through the claims duration process.”

The Court further explained that “we conclude that the Fourth District erred in holding that the evidence was insufficient to show that the insurer acted in bad faith in failing to settle the insured’s claim. In reaching this erroneous conclusion, the Fourth District failed to properly apply the directed verdict standard and misapplied this Court’s precedent in Boston Old Colony and Berges, where we set forth the fiduciary duties of insurance companies toward their insurers. We also conclude that the Fourth District misapplied our precedent when it stated that an insurer cannot be liable for bad faith ‘where the insured’s own actions or inactions … at least in part’ caused the excess judgment.”

At the time of this writing, the Supreme Court of Florida’s decision in Harvey is not yet final due to a pending motion for clarification filed by GEICO. A more thorough review of the Harvey decision will be forthcoming once the opinion is final.

“Deductible” Under § 627.7288, Fla. Stat., Does Not Include Appraisal Fee of Windshield Damage Claim

Progressive American Insurance Company et al. v. SHL Enterprises, et al., 43 Fla. L. Weekly D2434a (Fla. 2nd DCA 10-31-2018) Progressive’s insureds filed nine individual first-party claims seeking payment for windshield replacements. The insureds assigned their right to respective windshield replacement companies, which submitted invoices to Progressive for the windshield replacements.

Progressive issued payments to the windshield replacement companies. However, because these payments did not cover the full amount of the replacements, the windshield replacement companies filed breach of contract actions against Progressive in county court.

The companies argued that the insurance policies at issue included “Collision and Comprehensive Coverage,” which provided coverage for the windshield replacements without applying a deductible. The policy contained a provision requiring an appraisal when disputes arose concerning the costs of repair.

After the companies filed suit, Progressive moved to compel appraisal and to stay discovery in each case. In response, the companies argued that the appraisal provisions in the policies contravened section 627.7288, because it required the insured (or the insured’s assignee) to share in the cost of appraisal, which would be the equivalent of applying a deductible. The county court agreed, finding that the appraisal provisions were unenforceable because they required the insureds or their assignees to bear their own appraiser’s costs, which the county court determined was the equivalent of a deductible. Progressive filed petitions for writs of certiorari with the circuit court, which the circuit court denied.

The Second District Court of Appeal quashed the circuit court’s order denying the petitions, holding that the order resulted in a manifest injustice because section 627.7288 does not contain an express prohibition against requiring an insured to pay his or her appraisal costs where there is a dispute over windshield repair/ replacement costs. The Second District based its holding on the definition of “deductible” as a portion of the loss to be borne by the insured before the insurer becomes liable for payment. As the Second District reasoned, an appraisal fee would become relevant after an insurer has accepted liability and made a payment and a dispute arises concerning the amount of the payment. Accordingly, the Second District concluded that because the appraisal fee is not a portion of the loss that the insured must pay, it is not a deductible for purposes of section 627.7288.

Workers’ Compensation Insurer Not Liable for Claim Arising Same Day Insurance Acquired

Normandy Insurance Company v. Jose Sorto, Jimerico Construction, Inc. & Amerisure Insurance Co., 43 Fla. L. Weekly D2452a (Fla. 1st DCA 10-31-2018) At issue in this First District Court of Appeal decision was whether a workers’ compensation insurer must cover claims that were known to the insured before coverage was procured but were not disclosed to the insurer. Jose Sorto, an employee of J.A.M. Construction, was injured on the job when a Bobcat machine ran over his foot. The same day, J.A.M. Construction called its insurance broker regarding Mr. Sorto’s expected workers’ compensation claim, and its broker promptly obtained workers’ compensation coverage through Normandy Insurance Company. The broker, however, did not disclose that morning’s accident. At the broker’s request, Normandy wrote the insurance policy effective as of the same day going forward.

Mr. Sorto’s injury was later reported to Normandy in the form of a claim. Normandy accepted the claim and provided medical care and indemnity benefits. When Normandy discovered that Mr. Sorto’s injury pre-existed J.A.M.’s application for coverage and had not been disclosed to Normandy, it objected to the coverage of the claim.

Normandy proceeded to seek contribution from Jimerico, Inc., the general contractor at the work site where Mr. Sorto was injured and the entity that would otherwise be considered Mr. Sorto’s statutory

INSURANCE

employer responsible for providing workers’ compensation coverage.

Jimerico’s insurer, Amerisure Insurance Company, filed a counter motion for final summary order with the Judge of Compensation Claims, arguing that Normandy’s policy began at 12:01 a.m. on the day of the accident, a few hours prior to Mr. Sorto’s injury, and thus Normandy was responsible for covering the injury. The Judge of Compensation Claims agreed, prompting Normandy’s appeal to the First District.

On appeal, the First District noted that nothing in the workers’ compensation law requires new insurers to cover an insured’s prior known losses. Mr. Sorto and his fellow appellees relied on LaQuay v. Union Fidelity Life Insurance Company, 403 So. 2d 1359 (Fla. 4th DCA 1981), which held that when a policy does not set an effective date that includes a specific time of day, the policy’s coverage begins at 12:01 a.m. on the effective date. The First District, however, found that case easily distinguishable, because the insured had not concealed the claimed loss when coverage was sought. The First District reversed the summary final order granted in Amerisure’s favor and remanded for entry of a summary final order in favor of Normandy, based on the general rule that forbids insuring against known losses.

Insurer’s UM Rejection Form Must Strictly Follow Specific Language in Section 627.727(1), Florida Statutes

Geico Indemnity Company v. Perez, 43 Fla. L. Weekly D2187 (Fla. 3rd DCA 9-20-2018) The insured, Perez, sued GEICO for UM benefits under his automobile policy for an injury Perez sustained while operating his motorcycle. Perez had $10,000 in UM coverage under his motorcycle policy issued by GEICO, but sought UM coverage limits in the amount of $150,000, the full stacked UM benefit had UM benefits been provided under Perez’s automobile policy. GEICO denied Perez’s UM claim on his automobile policy because Perez had allegedly rejected UM coverage when he procured the automobile policy. Perez did not dispute that he had never paid a premium for UM coverage on his automobile policy.

Before proceeding to trial, GEICO filed two summary judgment motions, arguing that (1) Perez’s automobile policy did not provide UM coverage to Perez while riding his motorcycle, and (2) that under section 627.727(1), Florida Statutes (2013), GEICO was entitled to a conclusive presumption that Perez rejected UM coverage under his automobile policy because he virtually signed a UM rejection form when he procured his automobile policies. Perez filed a cross-motion for summary judgment, arguing that (1) GEICO’s online process for rejecting UM coverage was invalid because it did not comply with the requirements of section 627.727(1), and (2) GEICO was not entitled to section 627.727(1)’s conclusive presumption that Perez had rejected UM coverage because GEICO’s

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UM rejection form failed to comply with the statute. The trial court summarily dismissed GEICO’s motions for summary judgment but granted in part Perez’s cross-motion for summary judgment, finding that GEICO’s UM rejection form violated Florida law and that the “signature process utilized by GEICO violates Florida Statutes, is ambiguous and did not provide proper notice to” Perez. The case proceeded to trial, and the jury was asked to determine, among other issues, whether Perez had made a knowing, oral rejection of UM coverage. The jury found Perez had not made such a rejection, and it awarded Perez and his wife $1,778,000 in damages. The trial court entered a final judgment against GEICO in the amount of $150,000, the limit of UM coverage under Perez’s automobile policy. GEICO appealed.

Before the Third District Court of Appeal, GEICO argued that the trial court erred in denying its summary judgment motions.

The Third District rejected GEICO’s arguments. As to GEICO’s argument that Perez’s motorcycle was not a scheduled vehicle under the automobile policy, the Third District, relying on ample precedent from Florida courts, held that where an insured is injured while occupying an owned vehicle that is not listed on the policy, the insured is entitled to UM coverage even if he would not have been entitled to liability coverage had he been at fault for the accident. The Third District also rejected GEICO’s argument that it was entitled to the conclusive statutory presumption that Perez rejected UM coverage in the automobile policy because the Perezes’ daughter electronically signed the UM rejection form online on behalf of her father. The Third District affirmed the trial court’s finding that even though GEICO’s UM rejection form (identified as M-9-FL (11-96)) had been approved by the Florida Department of Insurance Regulation, the form failed to comply with section 627.727(1) because it did not track the precise language of the statute. While the UM rejection form “in all material respects” complied with the statute and GEICO had used the department-approved form for an extended period of time, because the UM rejection form’s disclaimer did not track wordfor-word the waiver language specified in section 627.727(4), Florida Statutes (2013), the rejection form was invalid.

Ultimately, the Third District reversed for a new trial after holding the trial court erred in excluding evidence that Perez orally rejected UM coverage. Plaintiff’s counsel has filed a motion for rehearing and rehearing en banc, which is currently pending.

GREGORY M. YAFFA

is a civil trial lawyer and shareholder at Domnick Cunningham & Whalen. He devotes his practice to representing the victims of catastrophic personal injury, wrongful death and insurance company bad faith. In addition to his successful law practice, Yaffa has been elected into leadership by several respected professional associations including service as president of the Palm Beach County Justice Association, North County Section of the Palm Beach County Bar Association and past chair of the FJA Young Lawyers Section.

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Onslaught of the Drones:

Discovery Against Mass Tort Plaintiffs and How to Survive It

by Bill Cash III

Your client bought a prescription drug or medical device that caused harm, disease, or death. She asked you to file suit in one of the big mass torts suits she’s heard about in the news, and you agreed.

You’ve figured out what a “short-form complaint” is, checked off the appropriate boxes for the name of the drug and the resulting injury.

And you’ve filed it in the right court, alongside hundreds, maybe thousands of other cases. The big plaintiffs’ firms will take it from here, right? Wrong.

The Plaintiff’s Fact Sheet (PFS) is a monstrously complex document, and the process for dealing with it could be the subject of its own article. A typical PFS can require hundreds of individual responses. A client will be asked to serve answers on — and you’ll be double-checking, cross-checking, and reviewing before service — any or all of the following topics:

What happens to you and your client next is unlike anything else you may have seen in personal injury litigation.

• Your name • Every school and college you’ve attended since kindergarten • Your parents’ names, spouse’s name, ex-spouse’s name, children’s names — and their addresses • Every lawsuit, worker’s comp claim, bankruptcy, or other legal proceeding you’ve ever been party to • Every prescription drug you’ve taken in the last 10 years (even one time) • Every doctor you’ve ever seen in the last 10 years • Did you actually use the allegedly defective product? Where?

When? How many times? At what doses? Was it continuous or were there breaks?

• Every oral or written statement you received regarding the defendant’s product, and every communication you had with anyone about the product

This article focuses narrowly on discovery against plaintiffs in mass torts, from the complaint to the plaintiff’s deposition. I walk you through the process and give tips for dealing with it.

Meet the Plaintiff’s Fact Sheet

In most mass torts, after a complaint is filed, plaintiffs are automatically obligated to tender discovery without a request. The usual course is to require the service of something called a “plaintiff’s fact sheet” (or “plaintiff profile form,” etc.). This is a highly stylized form of discovery that takes the place of separate interrogatories or requests to produce.

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• Everything relating to your claimed injury, including when it arose, who treated it, and what the resulting effects are • Whether you do have, don’t have, or aren’t sure if you have any of the following 100 diseases — please check the appropriate box • Financial questions about tax returns, employer information, income earned and lost, ad infinitum

Defendant’s Fact Sheets: The Sad Stepchild of Case-Specific Discovery

And your client can expect to produce documents from easily 20 or more different inscrutable categories. She must check a box for each of these as well.

The DFS is a lot shorter. Most of the general information about the company or its drug generally will be provided in giant blobs of documents released to the Plaintiffs’ Steering Committee, but the DFS in an individual case just describes what the company thinks it may know about your client or her specific doctors.

You will generally be required to produce an authorization for records directed to each doctor or entity named in a PFS. That can easily 4mean 30 more pieces of paper.

The PFS is officially a product of negotiation between defense counsel and the Plaintiffs’ Steering Committee appointed for that particular mass tort. In reality, it feels like a product of Satan. I am confident that defendants push for the most byzantine fact sheets so they can scare off plaintiffs who say, “To hell with this — it’s not worth it.”

After a PFS is served, many case management orders then give defendants the right to serve “deficiencies.” Basically, a deficiency is a letter from the defendant telling you that you didn’t answer one of the questions to their perfect satisfaction.

If the PFS is torture by fire, then deficiencies are torture by 50 papercuts. But they still hurt. Most deficiency letters seem to be written by first-year associates who are thrilled to be allowed to use firm stationery for the first time. They are florid in their language but picayune in the extreme. My most recent deficiency letter said: III.A & III.B Plaintiff failed to respond to one or more inquiries in this section regarding the PPI product(s) she identified in her PFS. Specifically, Plaintiff identified Rabeprazole in Sections III.B and III.C, but did not list the drug in Section III.A as a PPI she had ever taken. Please clarify this inconsistency.

Translation: “You listed the name of the drug, the dose, the dates you took it, the prescriber’s name, and the pharmacy’s name. And we already have the HIPAA authorizations to verify all this. But hey — you didn’t actually check the checkbox next to all this. So please check that checkbox and re-send us this 30-page document again.”

I received a different deficiency recently that warned me, in a single sentence that took up a full page, that we did not tender pharmacy records for the defendant’s product. Since the product was purchased over the counter, that’s not surprising.

Whenever a deficiency is claimed to exist, the defendants throw up their hands and say they have no obligation to respond with their part of the discovery. This allows defendants to stall the process for months on petty objections.

Meanwhile, you have to respond. Deficiencies, if unresolved, can ultimately lead to motions to compel.

In drug and device cases, after your PFS is served, bickered over, and grudgingly accepted, the defendants incur a reciprocal obligation to tell you about their side of your client’s specific case. The Defendant’s Fact Sheet, or DFS, is the form on which that’s done.

To produce these, the defense firms hunt through the company’s databases of contacts with doctors. This can include mailings, warning letters, and in the most saucy of cases, contacts by sales representatives in the doctor’s office.

This doesn’t really matter when it comes to their discovery against your client, which is the subject of the article, so I will pass from this subject. You generally use the DFS when preparing to depose your client’s doctors or any company sales reps you’re allowed to take.

What Happens Next: Endless Records Collection Behind the Scenes

So the fact sheets have been exchanged. Now what happens?

Well, defense firms actually pick up all the leads you’ve laid down.

Those high school records? They order them. The pharmacies you named? They buy those records. Insurance claims, tax returns, immunization records, old job applications and timesheets from summer jobs ... all of it is sucked into the defense maw.

And it doesn’t matter if it’s relevant to the specific injury claimed.

If your client claims, say, a discrete bleeding event in 2017, the defendants are still going to excavate decades of your client’s history if they can.

Further, records beget more records. Pharmacy records turn up new doctors, whose records must be collected; lab results in a specialist’s chart lead to requests for the lab’s entire file.

Why do defendants pursue this endless collection of information?

There are several reasons for this. I believe the most foundational one is that mass torts defense lawyers are motivated by fear: the fear that they’ll miss that one critical fact, that one datum that would somehow have tipped the case out of the “big verdict” column into the defense column. So they investigate thoroughly.

Their fear is backed up by a useful weapon: the Scrooge McDuck-style vaults of money drug companies have to spend on their gold-plated defense. Unlike an Allstate, which may only authorize so many billable hours to defend a car-wreck case, there really seems to be no end to the available resources on the defense side in mass torts. www.FloridaJusticeAssociation.org | November/December 2018 | 29

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The good news is that while this work goes on, most defendants do share all the records and other goodies they’ve gathered on a website and do it reasonably timely. The bad news is those records can be exhaustive, and you have to read them all unless you enjoy nasty surprises.

A Word About Supplementation

In federal court, there is an ongoing duty to supplement. Whether you have the duty or not, I believe it is important to supplement written responses whenever errors come to light. Better to be the one making corrections affirmatively, than to be the one caught with a bad answer.

If the trigger for a supplement is information you’ve found in records the defendants are sharing with you, this is a good opportunity to circle back with your client and ask her to dig a little deeper.

The Plaintiff’s Deposition

All right, you’ve served your PFS, gone a couple of rounds on deficiencies, peacefully agreed on the place and time for the deposition, and the moment has come: it’s time for your client to be deposed.

You will finally meet an actual lawyer.

The typical attorney deposing your plaintiff will be someone with at least six or seven years’ experience as a lawyer. Let’s call him Chad.

Chad went to a pretty good law school and will work it into conversation “casually.” Chad will let your client know that his questions are “just business, nothing personal,” and attempt to build rapport.

Chad may be from one of the firms directing the entire litigation nationally, but oftentimes he will be from a regional firm with no real authority over the mass tort as a whole.

You will get to know Chad really well. No matter what the issues appear to be from your perspective, the typical plaintiff’s deposition in a mass tort case will last all day. All. Day. Long. And into the night, if you let them. (Which you shouldn’t.)

Whatever chit-chat or rapport you may have enjoyed with Chad ends when Chad pulls out what I call “The Book.”

The Book is Chad’s bible, hymnal, and rulebook for the rest of the day. It is a 50-plus-page document — sometimes spiral bound — with scads of deposition questions for your client.

The national defense team writes The Book based on experience, wounds earned in past mass torts and bad rulings in this one, and what certainly feels like a strong measure of spite. The problem with The Book is that its authors have no idea about the facts in your individual case. It’s the same script in every case, ever. So it can border on the absurd.

Let’s get started. Chad’s deposition will start out with the basics — what’s your name? Is this your attorney? Do you know where you are today? Obviously, your client should be able to deal with these.

Next, Chad will pull out the PFS, any deficiency responses, and any supplements you have thought to serve, and show all of these to your client. Usually, that will happen one at a time, so the duller lawyers can actually waste 30 minutes just authenticating documents. It’ll be tediously proved that, yes, that is your client’s signature, and all the answers relate to the client, and were the client’s best recollection at the time.

“Surely,” you think, “after such an exhaustive discovery process, defendants would spend their deposition time trying to fill in gaps in the record.” You would be wrong.

Chad will oftentimes mind-numbingly go over the same information presented already, but he’ll do it in the backward, unreadable method it was discussed on the PFS in the first place. So you can expect him to ask not, “Tell me where you’ve lived for the last 10 years,” but rather: “So, from 2015 to 2018, you lived in Tampa, correct? Do you remember what month in 2015? And then from 2012 to 2015, you lived in Clearwater, correct? And then from May of 2010 to August 2012, you lived in Tampa, correct?” Like digging through geological layers, in reverse.

You will endure the misery of watching your client, who has just been scared to death by Chad’s lengthy admonitions to give true and accurate responses lest she be sent to jail, silently panic while trying to process these questions. Most clients don’t have total recall of such facts, which is why it can take them so much energy to produce the fact sheet in the first place.

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Chad will ask other questions. “What is your birthday?” It doesn’t matter that this date appears 100 times throughout the medical records, plus in the fact sheet sworn to under oath. Chad needs the answer again.

So much of what defendants will ask is rote, dry stuff that they already know. Why do they do it?

For one, they are always under orders to follow The Book. Unfortunately, the enemy does not consider creativity a necessary skill in a deposing attorney. In fact, it appears to be considered a weakness. Going back to my conception that many defense attorneys are motivated by fear, I think they are afraid to deviate from The Book even when the answers are obvious because someone is always looking over their shoulder — their boss at their regional firm, or national outside counsel, or the defendants’ in-house counsel. Certainly, they could be criticized by trial counsel who may use this deposition three years from now. Better to ask every question so you can say you were just following orders.

sex and religion. The questions went far beyond anything that was appropriate, including follow-up questions such as asking why a Catholic plaintiff did not attend mass regularly. ...

This Court made it clear that the questions were outrageous and different defense counsel asking the same questions in depositions scattered across the country was disturbing. This occurred at a management conference. At a break, in chambers, a defense attorney asked to speak ex parte with the permission of plaintiffs’ counsel. She came into chambers, she said she was having difficulty not crying, and proceeded to explain that she had been given a “script” of the questions to ask. She stated she was sorry and would not engage in such behavior again. She was concerned about repercussions.”

In re Accutane Litig., No. 271, at 12 (N.J. Super Ct. Feb. 7, 2013) (Higbee, P.J.).

However, I have also seen The Book get attorneys in trouble, in dramatic fashion. In one of her last orders on the bench, a now-deceased mass torts judge provided confirmation about how The Book works:

(This same lawyer later began asking my clients “if you have ever been handcuffed.” She argued that it was a legitimate back-door way of confirming whether a plaintiff had ever been arrested. Given that handcuffing can also occur outside the criminal context, I was unpersuaded.)

“The pattern of questioning suggested there was an intentional plan to intimidate and harass plaintiffs. ... The deposition questions shown to the Court included questions about anal

I believe another reason defendants use The Book in depositions is because it either creates tedium or lulls plaintiffs into a sense that all of the questions are going to be just as easy. Either way, this can give

Tips and Tricks • Plaintiff’s Fact Sheets are available in Word format, even if a PDF is all that appears on the court’s website. Ask around and save yourself the pain of having to do it all by hand.

• When deficiency letters arrive, call the sender immediately and ask what the real problem is. It is possible you don’t understand the form, but, more likely, they didn’t understand your answer. Occasionally, you can persuade a defendant to withdraw a deficiency after an explanation. Get that agreement in writing, though, or it doesn’t count.

• When you respond to a deficiency, make sure your client sees it and agrees with it.

• Any changes to written discovery should be done as early as possible.

• You probably already do this, but in prepping clients for depositions, you simply have to drill into them the importance of taking each and every question seriously, no matter the hour. If a client’s mind is drifting off, there is a duty to take a break, get coffee, and refocus on the matter at hand. Clients have to be taught how answers can be taken out of context and used against them later.

• It is essential to review all discovery materials with your client — her PFS and any amendments or supplements — so that she has confidence when asked to explain them.

• In cases when the patient is exposed to a product warning, it is essential to cover that in deposition preparation, too. Such warnings will be available from Plaintiffs’ Steering Committees. Ask around.

• It almost goes without saying, but it is also essential to read all of the documents produced by the defendant prior to the deposition.

That’s where the land mines are.

• At deposition, it might be welcomed if you actually take over the questioning on certain sections, such as helping the client recount all her past addresses, jobs, or schools. You may also want to walk in and announce that the client has just reviewed the fact sheet with you and has no changes to it (if true). Anything to speed through the tedium.

• Ask around to see if other lawyers are able to share past depositions in the same litigation. If so, you can reverse-engineer The Book. If you can’t get actual deposition transcripts, there is often an outline circulating that you can read.

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plaintiffs an incentive to rush through the questions or not take them too seriously. After the wonder of seeing your sixth-grade report card again wears off, four or five hours into a deposition, you tend to get sloppy. But as we know, all answers carry the same weight when lifted from a transcript years later. I believe defense lawyers deliberately put the trickiest questions around 3 o’clock in the afternoon for a reason.

So a more fundamental and insidious reason for drilling mass torts plaintiffs on tedious minutiae is a clear desire to trip plaintiffs up on those minutiae. In many mass torts, I have seen defendants play gotcha games meant to do nothing more than set clients up to look like liars even when they are telling the truth.

In another case I won’t forget, a PFS originally stated that he used the defendant’s drug for six months — say January to June. The illness developed months later. After that plaintiff’s lawyer reviewed pharmacy records showing that the drug had actually been taken until August, the fact sheet was amended to comport with the records. While this was just simply good lawyering as it made the answer accurate, it also had the fortuitously helpful effect of building a closer temporal connection between the bad drug and the disease. (In other words, it made causation more provable.)

At the trial, defense counsel went back to the deposition. He dramatically confronted the plaintiff with his original fact sheet, then the amended one, and then asked: “You testified under oath that the first one was correct. So when you changed your sworn answer, did you know that it was better for your case?”

Now, there was zero legitimate dispute that August was the true answer, not June, and that the defendant knew this. In fact, the defendant had deposed the prescribing physician and seen his records showing the August prescription. But on the stand, none of it mattered — the damage was done. This plaintiff lost his case.

Defense lawyers also try to make credibility issues from long-forgotten records. Let’s say your client suffers from an autoimmune disorder as the claimed injury. They will zero in on any hint of this — allergies, frequent colds, strep infections, anything and everything that could even suggest an immune problem — even in childhood. The implication will be that the problem was always there, well before the client encountered the bad drug.

can be even more damaging when, years later on the stand, your client finally fights with them, claiming the lawyer is taking her words out of context. The lawyer is — but there are the words in black and white. Who will the jury believe?

Finally, if the defense lawyer never gets the desired sound bite, counsel always has the option of trying again at trial, by just showing the same childhood records and starting a fight with your client. Suddenly the “No” checkbox on a plaintiff’s fact sheet looks like a deliberate lie, when the reality is the client didn’t remember some minor medical event that happened 20 years ago.

So those high-school attendance records they gathered become very important. If the defense can get your client to casually say, “I was sick a lot” or “I always had an ear infection,” that’s a sound bite they can recycle with treating doctors and the jury. If the client won’t take the bait, the defense shows your client the records from the distant past and tries again. Oftentimes the follow-up questions are: “Well, do you have any reason to disagree with these records from 1987?”

In drug and device mass torts, often defendants will attempt to take free shots at clients’ tolerance for risk. Why? Because these are usually products claims based on failure to warn, and oftentimes the theory is that the warning of possible increased harm just wasn’t strong enough or prominent enough. So you can sometimes expect your client to be led down a garden path of risk. Suppose the drug is alleged to create an 11 percent increased risk of cancer in patients taking it. Consider this series of questions and your client’s likely answers:

A bullying lawyer can secure many sound bites if your client is not careful (or tired from a very long day of tedium). These sound bites

• If you had known our product could have caused death, would you have used it? (“Heck no!”)

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• If you had known our product could have caused serious organ failure, would you have used it? (“No way!”)

• If you had known our product would give you an 50 percent increased risk of cancer? a 25 percent increased risk? a 1% increased risk? (“No, no, no!”)

Having gotten the client to claim that even a 1 percent increased risk would be unacceptable, defendants will then explore other risky things the client does. For example, smoking, heavy drinking, skydiving, tattoos (risk of hepatitis and HIV — check the consent forms), tanning beds, Lasik (risk of losing an eye?), etc., etc. Your client can look silly objecting to a 11 percent increased risk of cancer from a drug when she then admits she actively engages in an activity like tanning that she knows produces a much higher increased risk.

weaknesses is the most obvious. It’s The Book itself. Why? Because if you’ve seen one plaintiff ’s deposition, you’ve seen ’em all. Since the defendant is choosing to take cookie-cutter depositions, you can turn the tactic against them. Reverse-engineer the script to figure out what the questions will be next time.

Conclusion

Discovery against plaintiffs is an assembly line at times, but each stage deserves to be taken seriously. In mass torts, you never can be sure that your client’s case won’t be the one going to trial. To put the best case forward, it starts here.

Defendants can push the client even further out on this limb by getting your client to say that there is absolutely no risk that would be acceptable. In my opinion, all “risk” questions to your client pose some danger.

BILL CASH III

is a partner at Levin Papantonio in Pensacola. His practice is concentrated on mass torts and class actions across the country, often dealing with defective products.

This article was adapted from the daylong seminar he created, The Nuts and Bolts of Mass Torts, which is presented twice a year at Mass Torts Made Perfect in Las Vegas. www.mtmp.com.

Finally, I close with some good news about the deposition.

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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.

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www.FloridaJusticeAssociation.org | November/December 2018 | 33

MEDICALMALPRACTICE

MEDICAL MALPRACTICE:

RECENT DECISIONS

by Scott R. McMillen & Allison C. McMillen Second District holds plaintiff’s counsel who failed to substitute personal representative after plaintiff’s death made sufficient showing of excusable neglect. Sammons v. Greenfield, So.3d , 43 FLW D2367, 2018 WL 5092898 (Fla. 2nd DCA 10-19-2018).

A patient and his wife sued several healthcare providers for their alleged failure to timely diagnose and treat a toe problem. After suit was filed, the patient died of unrelated causes. The plaintiffs’ counsel filed a suggestion of death but failed to move to substitute the estate’s personal representative as plaintiff within 90 days, as required by Florida Rule of Civil Procedure 1.260(a)(1), or to seek an extension of time. The defendants moved to dismiss the case based on her failure to do so. At the hearing on the defendants’ motion, the plaintiffs’ counsel gave the court an affidavit about a health issue she claimed was responsible for her failure to move for substitution. The trial court found that the affidavit was not enough to show excusable neglect and dismissed the case with prejudice because the statute of limitations had expired. The Second District Court of Appeal reversed, citing the courts’ tradition of resolving all doubts in favor of resolution on the merits. Judge Silberman wrote a long dissenting opinion arguing that the record supported the trial court’s finding that counsel’s claim of excusable neglect was not credible.

Fourth District agrees doctor was not acting as volunteer physician under Volunteer Healthcare Provider Program, is not entitled to sovereign immunity protection. Allan J. Dinnerstein M.D., P.A. v. Florida Department of Health, So.3d , 43 FLW D2209 (Fla. 4th DCA 9-26-2018). A pregnant patient went to the hospital several times with suspected preeclampsia and was sent home each time by the same doctor. The third time the doctor sent her home, the patient died two hours after leaving the hospital. The patient’s estate sued the doctor and his professional association for medical malpractice, but the trial court granted summary judgment for the defendants on the basis that the doctor and P.A. were entitled to sovereign immunity, because the doctor participated in Florida’s Volunteer Healthcare Provider Program under §766.1115, Florida Statutes. The Fourth District Court of Appeal reversed in Florida Department of Health v. Allan J. Dinnerstein, M.D., P.A., 78 So.3d 26 (Fla. 4th DCA 2011), finding that there were genuine issues of material fact regarding whether the doctor was acting in his capacity as a volunteer doctor when he treated the patient. On remand, the trial court granted the Florida Department of Health’s motion for summary judgment, finding the defendants were not entitled to sovereign immunity because it was undisputed that the patient was not referred to the doctor pursuant to the terms of §766.1115, the doctor’s compensation by the hospital made him ineligible as a volunteer for patients seen there. The Fourth District affirmed, finding that it need not decide whether the trial court was correct in ruling that the doctor’s compensation through the hospital made him ineligible for sovereign immunity under the statutes. The court held that summary judgment was appropriate because there was no evidence the decedent was ever a patient in the volunteer program at all.

ALLISON C. 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. 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.

SCOTT R. 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. 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.

34 | November/December 2018 | www.FloridaJusticeAssociation.org

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.

PRODUCTSLIABILITY

Setting the Record Straight on Personal Jurisdiction and Products Liability

by Will Ourand

Products liability defendants have churned out an ever-increasing number of jurisdictional challenges over the past few years. The catalyst for this new onslaught of motions is a series of SCOTUS cases ranging from the 2011 decisions in Goodyear Dunlop Tires v.

Brown and J. Mcintyre Machinery v. Nicastro to the 2017 decision in Bristol-Meyers Squibb v. Superior Court. If you were to simply read a defense motion citing these cases, you would likely be left with the impression that everything you learned about personal jurisdiction during 1L Civil Procedure, from International Shoe to World-Wide Volkswagen, is no longer good law. Thankfully, that’s simply not true.

This article will provide necessary background context as to the big picture issues in products liability personal jurisdiction disputes, will then examine the recent SCOTUS cases, will move on to analyze opinions across the country applying those SCOTUS opinions, and will conclude by explaining how to successfully defeat an erroneous jurisdictional challenge brought in a Florida products liability action.

I. Big Picture: Products Liability and Personal Jurisdiction

Products liability cases are particularly ripe for jurisdictional disputes for the simple reason that they often involve goods that are manufactured in a far-off state or country by an out-of-state corporation. The products then make their way into the consumer’s hands and then fail, resulting in injury. The manufacturers (and other entities in the chain of distribution) may then seek to distance themselves from the very same consumers who they were all too happy to profit from, by arguing that they cannot be subject to the jurisdiction of the consumers’ home states, the states where the injuries were caused, or the states where the products were sold, serviced, installed, or otherwise used.

Instead, the defendants would prefer a world where they could pick the sole venue for claims against them — that venue being the state or foreign country where they were incorporated.

When a defendant raises a jurisdictional challenge, the court must answer one question: does that defendant have “sufficient contacts” with 36 | November/December 2018 | www.FloridaJusticeAssociation.org

the state such that continuing with the lawsuit would not “offend traditional notions of fair play and substantial justice.”1 There are two possible paths to jurisdiction under this analysis. First, the court may have “general jurisdiction” if the defendant’s contacts are “continuous and systematic.”2 General jurisdiction would confer jurisdiction for any case, no matter the claims or issues.3 General jurisdiction is clearly proper in the defendant’s state of incorporation or where it maintains a principal place of business.4 There is currently a split of authority at the national level as to whether a defendant who has voluntarily qualified to transact business and designated a registered agent has consented to jurisdiction within that state.5 The Third, Fourth, and Fifth DCA have each held that a Florida court may exercise jurisdiction under these circumstances.6 However, in August, the Third DCA issued an opinion (which is non-final at the time of this writing) which held that this prior law has “yielded” to the recent SCOTUS decisions in Goodyear v. Brown and Daimler v.

Bauman.7 I strongly believe this is an incorrect interpretation of those cases. Indeed, there is a recent trend of decisions across the country holding that neither Goodyear nor Daimler displaced existing law on consent jurisdiction via service on a registered agent.8 These decisions recognize a distinction between establishing jurisdiction based on a consent theory as opposed to establishing “at home” general jurisdiction based on “systematic and continuous contacts.”9 And, consent jurisdiction makes intuitive sense. After all, the company has chosen to invoke the benefit of the state’s laws to further its own business interests. Having done so, it only seems fair that it shouldn’t then be able to shirk its obligation to defend a lawsuit in that state.

The second possible basis for jurisdiction is “specific jurisdiction,” which allows the court to exercise jurisdiction over the defendant for claims “arising out of” or “connected with” the defendant’s affiliations to the state.10 The seminal opinion on specific jurisdiction in products liability cases is the 1980 decision in World-Wide Volkswagen v. Woodson.11 The World-Wide Volkswagen majority famously articulated the “stream of commerce” metaphor, explaining that: “The forum State does not exceed its powers under the Due Process Clause if it asserts

personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”12 Eight years after World-Wide Volkswagen was decided, Justice O’Connor, writing for a four Justice plurality in Asahi Metal Indus. Co. v.

Superior Court of California, created the “stream of commerce plus” test.13 Justice O’ Connor reasoned that “[t]he placement of a product into the stream of commerce, without more, is not an act of the defendant purposefully directed toward the forum State.”14 Her opinion went on to state that, “[a]dditional conduct of the defendant may indicate an intent or purpose to serve the market in the forum State. …”15 Justice Brennan wrote for another four justice plurality of the Court. He disagreed with the “additional conduct” requirement articulated by Justice O’Connor. In doing so, he explained that: “The stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale. As long as a participant in this process is aware that the final product is being marketed in the forum State, the possibility of a lawsuit there cannot come as a surprise.”16 It should be noted, however, that even the “additional conduct” standard articulated by Justice O’Connor is readily met where a defendant advertises in a state, establishes “channels for providing regular advice to customers” in the state, or markets the product “through a distributor who has agreed to serve as the sales agent in the forum state.”17 Since Asahi, specific jurisdiction in products liability cases has continued to be primarily driven by the various interpretations of the “stream of commerce” doctrine. This remains true even after the most recent pertinent SCOTUS decision in Bristol-Myers Squibb, as will be discussed in the next section.

II. The Recent SCOTUS Cases

There are two critical points to understand when analyzing and arguing against the typical defense motion invoking the recent SCOTUS decisions. First, these motions typically fail to acknowledge that each recent SCOTUS decision has revolved around a unique and attenuated set of facts — facts which are drastically different than the clear majority of products liability actions. Second, the defendants often attempt to blur the analyses applied by the Court with respect to general and specific jurisdiction. With these two critical points in mind, it’s easy to see how each case is readily distinguishable in the vast majority of products liability lawsuits in Florida.

Let’s start with the 2011 Goodyear decision. In that case, the plaintiffs were North Carolina residents whose children died in a bus accident in France. They filed suit in their home state of North Carolina against Goodyear USA, and Goodyear’s “foreign affiliates” located in Germany, France, and Luxembourg.18 Notably, Goodyear USA did not challenge jurisdiction.19 Only the foreign Goodyear entities did so.20 Justice Ginsburg, writing for the majority, unsurprisingly held that North Carolina lacked general jurisdiction over the German, French, and Luxembourg companies because the record did not support a finding that those companies were “at home” in North Carolina.21

In doing so, the majority opinion explicitly recognized that those companies “were not registered to do business in North Carolina.”22 The majority opinion then rejected the argument that the “stream of commerce” doctrine could confer general jurisdiction — which makes sense, because the “stream of commerce” doctrine confers jurisdiction where “a nonresident defendant, acting outside the forum, places in the stream of commerce a product that ultimately causes harm inside the forum.”23 In other words, this analysis is germane to specific jurisdiction.24 The majority opinion likewise concluded that the state court lacked specific jurisdiction, observing that “the episode-in-suit, the bus accident, occurred in France, and the tire alleged to have caused the accident was manufactured and sold abroad.”25 It is clear then that Goodyear is entirely distinguishable from any Florida lawsuit involving either an accident that occurs in Florida, or a product sold, serviced, inspected, or used in Florida. Defendants like to gloss over or entirely omit this critical factual distinction while extracting general quotes and platitudes from the case — often from the general jurisdiction analysis — in support of an argument that Florida lacks specific jurisdiction. Do not let them get away with such arguments in your cases.

SCOTUS handed down its decision in J. McIntyre on the same day it issued Goodyear. And much like Goodyear, J. McIntyre also involved an attenuated set of jurisdictional facts. Specifically, the plaintiff in that case was injured by a welding machine manufactured by an English company.26 The English company, however, had never advertised in New Jersey, did not maintain an office in New Jersey, and had, at most, sold just four machines that wound up in New Jersey.27 Under those facts, Justice Kennedy authored a plurality opinion finding that the defendant lacked the type of “purposeful availment” needed to subject it to specific jurisdiction under Justice O’Connor’s “stream of commerce plus” test.28

www.FloridaJusticeAssociation.org | November/December 2018 | 37

PRODUCTSLIABILITY

J. McIntyre has limited applicability to most products liability cases.

First, the facts in that case are extremely attenuated. The four-welding machines sold in New Jersey pale in comparison to the mass marketed products sold throughout Florida. Second, as a legal matter, J. McIntyre again commanded no majority opinion; as such, the prior law on stream-of-commerce remained intact following that decision.

Subsequently, in January 2014, SCOTUS decided Daimler AG v.

Bauman. In that case, the plaintiffs were Argentinian nationals who filed a lawsuit in the Northern District of California against Daimler, a German corporation.29 The plaintiffs alleged that Daimler was involved in a “Dirty War” through its Argentinian subsidiary.30 Justice Ginsburg, writing for the majority, merely held that California did not have general jurisdiction over the German company for the same reasons that North Carolina did not have general jurisdiction over the European Goodyear entities.31 The factual differences and limited legal application of this decision should be obvious to the reader at this point.

SCOTUS decided Walden v. Fiore the very next month.32 The plaintiff in Walden was a Nevada resident who brought suit in Nevada against a Georgia police officer based on an alleged unlawful search and seizure occurring at a Georgia airport.33 Justice Thomas authored the majority opinion, and unsurprisingly held that Nevada lacked specific jurisdiction over the Georgia police officer because the officer had no connection to Nevada.34 You may wonder why I am discussing this case in a products liability article. The reason is simple: products liability defendants are using this decision in support of their jurisdiction motions. Walden is readily distinguishable from cases involving product manufacturers and others in the distributive chain who have regular business contacts with Florida through the sale of products, advertising, dealer and distribution networks, etc.

The most recent pertinent decision is Bristol-Myers Squibb, which came out in June 2017. In that case, a group of plaintiffs from across the country filed suit in California for injuries they claimed were caused by the drug Plavix.35 The SCOTUS opinion addressed only those plaintiffs who were not residents of California.36 Bristol-Myers Squibb was not a California company.37 Under these facts, the Court merely held that the non-resident plaintiffs who “were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California, and were not injured by Plavix in California,” could not sue in California.38 The Court expressly noted that it was not changing the law; indeed, the Court clarified that the opinion was merely a “straightforward application … of settled principles of personal jurisdiction.”39 As such, Bristol-Myers Squibb did not alter the jurisdictional analysis for cases involving an injury occurring in Florida, or for a case involving a product sold, installed, serviced, maintained, or used within Florida.

III. Cases Applying the Recent SCOTUS Decisions

Manufacturers have launched a wave of jurisdictional challenges premised on the notion that Goodyear, J. McIntyre, Daimler, Walden, and Bristol-Myers Squibb have radically altered personal jurisdiction in products liability cases. For example, automakers 38 | November/December 2018 | www.FloridaJusticeAssociation.org

and tire manufacturers have filed motions to dismiss in cases where a vehicle is first sold in one state, but then fails and causes a crash and severe injuries while being used in another state. These kinds of motions will typically argue that the state where the crash happened lacks general jurisdiction because it’s not the manufacturer’s state of incorporation or the state where it maintains its headquarters. They will then often argue that specific jurisdiction is lacking because the “first sale” did not happen within the state.

Although some decisions, including an unpublished opinion from the Middle District of Florida,40 have bitten on this type of argument, the majority of courts have rejected such motions.41 For example, the Texas Court of Appeals recently rejected Michelin’s argument that “jurisdictional ‘liability’ only extends as far as the point of first retail sale.”42 The Court explained, “Michelin targets Texas and intends for its tires to end up in the hands of Texas consumers,” and “Michelin could have reasonably foreseen that the tire would end up in Texas, and given the company’s extensive targeting of the state, it could hardly be surprised that it would be hauled to court to answer defect charges in Texas.”43 The Court then poignantly observed that: If a manufacturer takes a shotgun shell approach to marketing and deliberately aims a batch of product at multiple states, it seems odd to let the manufacturer complain that even though its product actually struck a targeted state, the point should not count simply because there was an unexpected ricochet along the way. 44 Similarly, in Tarver v. Ford Motor Co., 2016 U.S. Dist. LEXIS 167363 (W.D. Okla. Dec. 5, 2016), the Western District of Oklahoma rejected the same kind of argument, reasoning: The Court finds unavailing Ford’s argument that personal jurisdiction does not exist because the subject vehicle was assembled in Kansas City, Missouri and later sold to an independent dealership in Indiana. The pivotal inquiry under the stream of commerce theory is whether a defendant has attempted to serve a market and expects its product to be used there.

Irrespective of the state of assembly, Ford designs, manufactures, markets, and sells products specifically built for interstate travel, which includes Oklahoma. Ford manufactured and sold the subject vehicle with the reasonable expectation it would be used in Oklahoma and this action arises from the vehicle’s use in Oklahoma.45 Ford subsequently filed a motion for reconsideration based on Bristol-Myers Squibb. The court denied the motion, observing that “The court’s decision in Bristol-Meyers makes no mention of the ‘stream of commerce’ doctrine. Rather, the court made its decision through a ‘straightforward application’ of ‘settled principles of personal jurisdiction.”46

out in Venetian Salami Co. v. Parthenais.50 This procedure recognizes that: “Initially, the plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for service in the language of the statute without pleading the supporting facts.”51 A defendant can then challenge those allegations by filing affidavits in support of its position.52 Once the defendant has done so, “[t]he burden is then on the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.”53

The Western District of Oklahoma likewise rejected the same type of argument made by Suzuki, noting that, “although the motorcycle alleged to have caused [the plaintiff’s] injuries originally was sold in Ohio rather than Missouri, it was of the same type as motorcycles SMC sold into Missouri via its distribution system, and the crash occurred in Missouri.”47 As such, the court found that “SMC’s placement of its product into the stream of commerce sufficiently relates to Plaintiff’s cause of action, and SMC has the requisite minimum contacts with Missouri to satisfy due process standards.”48 The West Virginia Supreme Court provided a concise and eloquent explanation as to why the “point of first sale” rule advanced by manufacturers is neither compelled nor supported by existing precedent, reasoning: We decline to use the place of sale as a per se rule to defeat specific jurisdiction. Such an approach ignores even the plurality in J. McIntyre that indicated that the inquiry considers both the defendant’s conduct and the economic realities of the market the defendant seeks to serve. It also utterly ignores the “targeting” of a forum for the purpose of developing a market. The focus in a stream of commerce or stream of commerce plus analysis is not the discrete individual sale, but, rather, the development of a market for products in a forum.49 Many additional cases reaching the same conclusion under various facts have been provided in the endnotes to this article.

These decisions were all issued within the past few years; indeed, many of these cases were issued just a few months ago. If you are faced with a jurisdictional challenge premised on the notion that Bristol-Myers Squibb, et al. have marked a radical change in the law on jurisdiction, the cases cited in this section and in the endnotes will help show the court that this type of argument is simply wrong.

IV. Battling Personal Jurisdiction in Florida State Court

A jurisdictional challenge in a products liability action in Florida state court will be governed in accordance with the procedure set

The plaintiff is entitled to conduct discovery to help disprove the defendant’s self-serving affidavits. This right to discovery was established by the Florida Supreme Court in Gleneagle Ship Management v. Leondakos, which recognized that “While a plaintiff should not file a frivolous complaint alleging personal jurisdiction, we recognize that averments made in good faith may not always rise to assertions which could be made under oath. Thus, a plaintiff should be able to conduct limited discovery on the jurisdictional question in order to gather facts and file an opposing affidavit.”54 In crafting discovery and framing arguments in opposition to the defense motion, it will be critical to understand the constitutional principles of due process discussed above, in addition to the provisions of Florida’s long-arm statute and controlling case law. As a general matter, the key issues tend to revolve around the defendant’s marketing efforts, in-state distribution network (i.e. company owned stores, third-party dealers, etc.), product sales within the State, and other similar issues.

It’s critical to remember the sheer size of our state in this analysis.

The Florida market is incredibly lucrative. Manufacturers depend on the sale of their products in Florida’s large marketplace to ensure profitability. Notably, the Fourth DCA explicitly recognized the direct relevance of Florida’s market size to the jurisdictional inquiry a few years after Asahi was issued, explaining that: A manufacturer that produces hundreds of thousands of product units that are distributed over a five-year period in the United States, of which at least 6,000 were marketed in Florida, should reasonably anticipate being sued in this state in connection with product defects causing injury. It does not offend traditional notions of fair play and justice to permit the manufacturer to be sued in the fourth most populous state in the country under such circumstances.55 Additionally, it’s important to understand that the defendants’ corporate structure and relationship to other entities involved in the design, manufacture, and sale of its products may confer a basis for jurisdiction. Florida’s long-arm statute specifically recognizes that a defendant subjects itself to jurisdiction by committing an enumerated act either “personally or through an agent.”56 As one example, Florida courts have recognized that “when a parent exercises sufficient control over a subsidiary, that control establishes an agency and supports jurisdiction.”57 Products liability defendants often operate as a chain of interrelatwww.FloridaJusticeAssociation.org | November/December 2018 | 39

PRODUCTSLIABILITY

ed companies that are established for one sole purpose: to sell the parent’s products. The plaintiff should consider and explore agency-based jurisdiction in discovery where it appears that there may be evidence of sufficient control to establish jurisdiction.

Finally, it’s important to consider and, if viable, develop a case for general jurisdiction. In addition to looking at the defendant’s incorporation paperwork and principal place of business, also look to whether the defendant has voluntarily qualified to transact business in Florida and designated a registered agent in the State. As discussed above, the Third DCA has recently issued an opinion (which is non-final at the time of this writing) which may cut against this type of argument; however, longstanding precedent still supports such a claim.58 I would argue that the recent Third DCA case was wrongly decided and misconstrues the Goodyear and Daimler decisions. This argument is supported by multiple courts from across the country.59 Int’l Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154 (1945).

2 Id. 3 Id. 4 Id. 5 See Brieno v. Paccar, Inc., No. 17-cv-867 SCY/KBM, 2018 U.S. Dist. LEXIS 129777 (D.N.M. 8-2- 2018); McDonald AG Inc. v. Syngenta AG (In re Syngenta AG MIR 162 Corn Litig.), No. MDL No. 2591, 2016 U.S. Dist. LEXIS 65312 (D. Kan. 5-17-016).

6 Rose’s Stores v. Cherry, 526 So.2d 749 (Fla. 5th DCA 1988); Junction Bit & Tool Co. v. Institutional Mortg.

Co., 240 So.2d 879 (Fla. 4th DCA 1970); Dombroff v.

Eagle-Picher Indus., Inc., 450 So.2d 923 (Fla. 3d DCA 1984); Ranger Nationwide, Inc. v. Cook, 519 So.2d 1087 (Fla. 3d DCA 1988); but see Waite v. AII Acquisition Corp., 901 F.3d 1307, 27 FLW Fed. C1232 (11th Cir. 2018) and Magwitch, LLC v. Pusser’s W. Indies Ltd., 200 So.3d 216, 41 FLW D2077 (Fla. 2d DCA 2016).

7 Woodruff-Sawyer & Co. v. Ghilotti, 43 FLW D1996 (Fla. 3d DCA 8-29-2018).

8 Brieno v. Paccar, Inc., No. 17-cv-867 SCY/KBM, 2018 U.S. Dist. LEXIS 129777 (D.N.M. 8-2-2018); Gorton v.

Air & Liquid Sys. Corp., 303 F. Supp. 3d 278 (M.D. Pa. 2018); Senju Pharm. Co., Ltd. v. Metrics, Inc., 96 F. Supp.

3d 428 (D.N.J. 2015); Mitchell v. Eli Lilly & Co., 159 F. Supp. 3d 967, 979 (E.D. Mo. 2016).

9 Id. 10 Goodyear Dunlop Tires Ops., S.A. v. Brown, 564 U.S. 915, 919, 131 S. Ct. 2846, 2851 (2011).

11 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297-98 (1980).

12 Id. 13 Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U.S. 102, 112 (1987).

14 Id. at 112.

15 Id. 16 Id. at 117.

17 Id. at 112.

18 Goodyear Dunlop Tires Ops., S.A. v. Brown, 564 U.S. 915, 918 (2011) 19 Id. 20 Id. 21 Id. at 919.

1

V. Conclusion

At the end of the day, personal jurisdiction is still about “fair play and substantial justice.” SCOTUS has not overruled International Shoe or World-Wide Volkswagen. A defendant who has knowingly tapped into and profited from the lucrative Florida market must answer in a Florida court for the harms its products cause within our state.

WILLIAM C. 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.

Id. at 921.

Id. at 926 (emphasis in original).

24 Id. at 927.

25 Id. at 919.

26 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 878 (2011) 27 Id. at 885-87.

28 Id. 29 Daimler AG v. Bauman, 571 U.S. 117, 134 S. Ct. 746 (2014).

30 Id. at 121.

31 Id. at 122.

32 Walden v. Fiore, 571 U.S. 277, 134 S. Ct. 1115 (2014) 33 Id. at 279.

34 Id. at 290.

35 Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017).

36 Id. at 1778.

37 Id. 38 Id. at 1781.

39 Id. at 1783.

40 Erwin v. Ford Motor Co., No. 8:16-cv-01322-T-24 AEP, 2016 U.S. Dist. LEXIS 185960 (M.D. Fla. 8-31-2016) (transferring case to Delaware, Ford’s state of incorporation); but see Erwin v. Ford Motor Co., 309 F. Supp. 3d 229, 233 (D. Del. 2018) (“Although I am bound by the transfer . . . the due process analysis of the transferring court seems tenuous at best. To my knowledge, no court has ever reached a similar result in a case involving a manufacturer with nationwide distribution, and the cases upon which the decision rested presented far different facts.”).

41 Michelin N. Am., Inc. v. De Santiago, 2018 Tex. App. LEXIS 6039, at *39 (App. 8-2-2018); Tarver v. Ford Motor Co., 2016 U.S. Dist. LEXIS 167363, at (W.D. Okla.12-5-2016); Tarver v. Ford Motor Co., 2017 U.S. Dist. LEXIS 130517, at *7 (W.D. Okla. 8-16-2017); Alexander v. Suzuki Motor of Am., Inc., 2018 U.S. Dist.

LEXIS 135170, at *18 (E.D. Mo. 8-10-2018); Bandemer v. Ford Motor Co., 913 N.W.2d 710, 714 (Minn. Ct. App. 2018), appellate review granted, 2018 Minn.

LEXIS 405 (7-17- 2018); Ford Motor Co. v. McGraw, 788 S.E.2d 319 (2016); Lucero v. Ford Motor Co., Cause No. ADV‐18‐0247(b) (Mont. 8th Dist. 10-10-2018); 22 23

40 | November/December 2018 | www.FloridaJusticeAssociation.org

Spiva v. Bridgestone Americas Tire Ops., LLC, Cause No. 18‐C‐0286‐S6 (Ga. Gwinnett County 10-8-2018); Spiva v. Ford Motor Co., Cause No. 18‐C‐0286‐S6 (Ga. Gwinnett County 9-28-2018); Tomas v. Bayerische Motoren Werke AG, 2018 U.S. Dist. LEXIS 143968 (N.D. Ala. 8-24-2018); Dillard v. Fed. Corp., 2018 U.S. Dist. LEXIS 129409 (W.D. Tex. 8-1-2018); Align Corp. v. Boustred, 421 P.3d 163 (Colo. 2017); Thomas v. Ford Motor Co., 289 F. Supp. 3d 941 (E.D. Wis. 2017); Kowal v. Westchester Wheels, Inc., 2017 IL App (1st) 152293, 417 Ill. Dec. 888, 89 N.E.3d 807; Griffin v. Ford Motor Co., 2017 U.S. Dist. LEXIS 141709 (W.D. Tex. Aug. 31, 2017); Antonini v. Ford Motor Co., 2017 U.S. Dist.

LEXIS 135247 (M.D. Pa. 8-23-2017).

42 Michelin N. Am., Inc. v. De Santiago, 2018 Tex. App. LEXIS 6039, at *39 (App. 8-2-2018).

43 Id. at 37.

44 Id. at 39.

45 Tarver v. Ford Motor Co., 2016 U.S. Dist. LEXIS 167363, at (W.D. Okla. 12-5-2016) (emphasis added).

46 Tarver v. Ford Motor Co., 2017 U.S. Dist. LEXIS 130517, at *7 (W.D. Okla. 8-16-2017) (emphasis added).

47 Alexander v. Suzuki Motor of Am., Inc., 2018 U.S. Dist.

LEXIS 135170, at *18 (E.D. Mo. 8-10-2018) (emphasis added).

48 Id. (emphasis added).

49 State ex rel. Ford Motor Co. v. McGraw, 788 S.E.2d 319 (2016) (emphasis added).

50 Venetian Salami co. v. Parthenais, 554 So.2d 499 (Fla. 1989).

51 Id. at 502.

52 Id. 53 Id. 54 Gleneagle Ship Mgmt. Co. v. Leondakos, 602 So.2d 1282, 1284 (Fla. 1992).

55 McHugh v. Kenyon, 547 So.2d 318, 319 (Fla. 4th DCA 1989).

56 Fla. Stat. §48.193(1) (emphasis added).

57 ENIC, PLC v. F.F. S. & Co., 870 So.2d 888, 891 (Fla. 5th DCA 2004) 58 See Wood-ruff Sawyer, note 7; see also cases cited in note 5.

59 See cases cited in notes 5 and 8.

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WORKERS'COMPENSATION

First Responders’ PTSD Benefits: What’s New and What’s Not

by Richard E. Chait and Mark A. Touby

While our nation struggles to deal with the realization that psychiatric injuries can be just as disabling as physical injuries, Florida has taken an important step forward by allowing first responders to claim lost wages as well as receive medical treatment for some mental injuries. In the course of their jobs, first responders often experience gruesome scenes that can result in psychological trauma. Florida law, specifically §112.1815, Fla. Stat., provides for medical care for all psychological conditions suffered by first responders that result from witnessing these shocking scenes while performing their duties. While the workers’ compensation system generally allows for psychiatric injuries to be compensable when accompanied by a physical injury, this law does not require that the first responder suffer a physical injury in conjunction with the traumatizing experience.1 However, if the traumatic experience caused the first responder to miss time from work, the first responder previously was not eligible for indemnity benefits (payment for lost wages). As the result of recent legislation that amends §112.1815 (effective October 1, 2018), first responders who are diagnosed with PTSD will now be eligible to receive indemnity benefits under the newly created subsection (5). Nevertheless, there are some limitations under this new law.

The exception to the physical injury requirement for compensability of a mental or nervous condition applies only to first responders. “First responder” is defined in §112.1815(1) as follows: 42 | November/December 2018 | www.FloridaJusticeAssociation.org

“…a law enforcement officer as defined in s. 943.10, a firefighter as defined in s. 633.102, or an emergency medical technician or paramedic as defined in s. 401.23 employed by state or local government. A volunteer law enforcement officer, firefighter, or emergency medical technician or paramedic engaged by the state or a local government is also considered a first responder of the state or local government for purposes of this section.”

To be eligible for indemnity benefits, the first responder must: (1) be diagnosed with PTSD by an authorized treating psychiatrist; and (2) suffer from PTSD as a result of experiencing one of the events specifically listed in the statute.

The newly created indemnity benefit under §112.1815 applies only to the psychiatric diagnosis of PTSD, as diagnosed by an authorized physician. As such, absent a diagnosis of PTSD, first responders diagnosed with depression, anxiety disorder or other psychiatric ailments common in work related injuries will not be eligible for indemnity benefits under this section.

The first responder’s PTSD must result from experiencing one of the events specifically listed in the statute while acting in the course and scope of employment. The list of 11 triggering events includes witnessing the death of a minor, and/or witnessing any

death that involves “grievous bodily harm of a nature that shocks the conscience.”2 Consequently, there is no “catch-all” phrase according to the rules of statutory construction. Events not on the enumerated list are, by implication, assumed to not be covered by the statute.

The definition of “grievous bodily harm of a nature that shocks the conscience” will be determined by administrative rules. The rules development procedure is already underway, and a Rules Development Workshop took place on October 4, 2018. The preliminary text of the proposed rule indicates that the final adopted rule will likely define the term to include a gruesome range of injuries such as decapitation, impalement, etc. During the workshop, suggestions were made to include additional injuries (such as a drowning death and smoke inhalation death) to the proposed definition of “grievous bodily harm of a nature that shocks the conscience.”

New subsection (5) of the statute includes language concerning the burden of proof and contains exceptions from applicability of limitations found elsewhere in the workers’ compensation law. The PTSD must be demonstrated by clear and convincing evidence, which is the same level of proof currently required in exposure cases.3 The benefits under the new subsection are not subject to apportionment due to pre-existing PTSD. There are no limitations on permanent impairment rating,4 and there are no limitations on temporary indemnity benefits in connection with the date of maximum medical improvement.5 This language, however, is not new; most of it is a reiteration of the language that is found in subsection (2)(a)3.

Employees are generally required to report an injury to their employer within 30 days of the event.6 Per §112.1815(5)(d),

“The time for notice of injury or death in cases of compensable post-traumatic stress disorder under this subsection is the same as in §440.151(6) and is measured from one of the qualifying events listed in subparagraph (a)2; or the manifestation of the disorder, whichever is later.” Section 440.151 is the portion of the workers’ compensation statute that refers to occupational diseases and which extends the time for notice of injury to 90 days in those types of cases. How this requirement will interact with §112.1815(5)(d), which states that a claim under the subsection must be properly noticed within 52 weeks after the qualifying event, is one of many questions that will need to be answered. It is likely that multiple parts of this subsection will be the subject of controversy that inevitably will have to be adjudicated by judges of compensation claims and the appellate courts.

There are other instances in which the applicability of the amendment remains unclear. It is established that “…the substantive rights of the parties are fixed by the law in effect on the date of injury.” Meek v.

Layne-Western Co., 624 So.2d 345 (Fla. 1st DCA 1993). Establishing the date of the accident for first responders who witness an enumerated triggering event after October 1, 2018, and subsequently develop PTSD will not be an issue. However, it is uncertain whether a first responder who witnessed one of the triggering events prior to October 1, 2018, but does not have a manifestation of the PTSD until after that date, will be entitled to indemnity benefits.

A case involving an injury described in §112.1815 is most like an occupational disease or an exposure case. Newly added subsection (5) makes reference to notice requirements similar to the occupational disease portion of the workers’ compensation statute; while the new subsection also requires a higher standard of proof (clear and convincing), which is the same as required for exposure cases. In those types of cases, the date the condition becomes disabling is usually determined

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WORKERS'COMPENSATION

as the date of accident. As defined in §440.02(13), Fla. Stat., “disability” means “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.”

In American Beryllium Co. v. Stringer, 392 So.2d 1294 (Fla. 1980), the claimant did not file a claim for indemnity benefits due to exposure to a toxic element until the condition became disabling, which was seven years after he had last worked for the employer. The deputy commissioner (n/k/a judge of compensation claims) denied the claim based on the statute of limitations. However, the Florida Industrial Relations Commission (IRC) reversed stating that the injury was not compensable until such time as it became disabling. The Florida Supreme Court reviewed the IRC’s decision and upheld it noting that in occupational disease cases, it is the disability rather than the disease that determines compensability of the claim. We will have to wait until a case arises to find out if the courts will apply the reasoning in Stringer to claims under §112.1815(5) that are defended on the basis of expiration of the statute of limitations.

The applicability of §112.1815(5) to first responders who have existing medical claims for PTSD pre-dating the 2018 amendment will likewise have to wait until cases arise and are adjudicated. Because of the provision of medical care, a date of accident would have been established which would pre-date the amendment. It is difficult to predict how the judges of compensation claims will decide those cases.

Until the answers to these and many other questions are answered, each claim must be handled with one eye on the road and one eye on the horizon. Until a body of case law is developed, each case must be

Section 440.093, Fla. Stat., pertaining to nervous or mental injuries, requires an accompanying physical injury resulting in medical treatment, for a nervous or mental injury to be compensable. Section 112.1815, Fla. Stat. (2007) created an exception to the physical injury requirement for first responders.

2 The following is the list of triggering events per the new section: a. Seeing for oneself a deceased minor; b. Directly witnessing the death of a minor; c. Directly witnessing an injury to a minor who subsequently died before or upon arrival at a hospital emergency department; d. Participating in the physical treatment of an injured minor who subsequently died before or upon arrival at a hospital emergency department; e. Manually transporting an injured minor who subsequently died before or upon arrival at a hospital emergency department; f. Seeing for oneself a decedent whose death involved grievous bodily harm of a nature that shocks the conscience; 1

handled carefully, not only for the sake of the indemnity claim at issue but also with thoughtful consideration as to what precedents might be created.

Our first responders are aptly labeled. They are the first ones to arrive and provide assistance to citizens of Florida who are in their most desperate and vulnerable moments. The law acknowledges that there are certain situations that affect even the most prepared and most dedicated among us. For all they do, these benefits must be available to all first responders who need them without encountering unnecessary legal hurdles.

RICHARD E. CHAIT

is a shareholder and partner with the law firm of Touby, Chait & Sicking, PL. He currently serves on the FJA Board of Directors – Executive Committee and is the chair of the FJA Workers’ Compensation Section. He is a past chair of The Florida Bar Workers' Compensation Section and past president of the Florida Workers' Advocates (FWA). Throughout his career, he has maintained a vital role in Florida’s political, legislative and leadership process on behalf of Florida’s injured workers and the Workers’ Compensation System. He is a recipient of the FJA Jon E. Krupnick Award, Cornerstone Award and Silver Eagle Award (2017, 2018); the inaugural recipient of the David H. Levine Outstanding Leadership Award and Stewart L. Colling Legislative Leadership Award (FWA) and the Frierson-Colling Professionalism Award (Workers’ Comp Section).

MARK A. TOUBY

is the managing partner of Touby, Chait & Sicking, PL. He has been a Board Certified Workers’ Compensation Lawyer since 2011. His practice focuses on workers’ compensation and public employee benefits. He has served as president of Florida Workers Advocates (FWA), chair of the Workers’ Compensation Rules advisory committee and as a member of the Executive Council of the Workers Compensation Section of The Florida Bar. He is AV rated by Martindale-Hubbell and is a recipient of the Jon E. Kupnick Award.

g. Directly witnessing a death, including suicide, that involved grievous bodily harm of a nature that shocks the conscience; h. Directly witnessing a homicide regardless of whether the homicide was criminal or excusable, including murder, mass killing as defined in 28 U.S.C. s. 530C, manslaughter, self-defense, misadventure, and negligence; i. Directly witnessing an injury, including an attempted suicide, to a person who subsequently died before or upon arrival at a hospital emergency department if the person was injured by grievous bodily harm of a nature that shocks the conscience; j. Participating in the physical treatment of an injury, including an attempted suicide, to a person who subsequently died before or upon arrival at a hospital emergency department if the person was injured by grievous bodily harm of a nature that shocks the conscience; or k. Manually transporting a person who was injured, including by attempted suicide, and subsequently died before or upon arrival at a hospital emergency department if the person was injured by grievous bodily harm of a nature that shocks the conscience.

44 | November/December 2018 | www.FloridaJusticeAssociation.org

Section 440.02(1), Fla. Stat. “ … An injury or disease caused by exposure to a toxic substance, including, but not limited to, fungus or mold, is not an injury by accident arising out of the employment unless there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.”

4 Section 440.15(3)(c), Fla. Stat. – “… permanent impairment benefits are limited for the permanent psychiatric impairment to one percent permanent impairment.”

5 Section 440.093(3), Fla. Stat. – “… in no event shall temporary benefits for a compensable mental or nervous injury be paid for more than 6 months after the date of maximum medical improvement for the injured employee’s physical injury or injuries…”

6 Section 440.185(1) – “An employee who suffers an injury arising out of and in the course of employment shall advise his or her employer of the injury within 30 days after the date of or initial manifestation of the injury…”

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www.FloridaJusticeAssociation.org | November/December 2018 | 45

EVIDENCE

FRYE RETURNS

by Matt Schultz

On October 15, 2018, the Florida Supreme Court reinstated the Frye standard for the admission of expert evidence. Let’s take a look at the game-changing opinion in DeLisle v. Crane Co., So.3d , 43 FLW S459, 2018 WL 5075302 (Fla. 10-15-2018).

How We Got Here

Before 2013, expert opinion testimony was admissible in Florida if it would “assist the trier of fact in understanding the evidence or in determining a fact in issue,” the witness was “qualified as an expert by knowledge, skill, experience, training, or education,” and the opinion could “be applied to evidence at trial.”1 So-called “pure opinion” testimony was admissible if it satisfied this standard.2 A Frye analysis for “general acceptance” of an opinion was required if an opinion was challenged as involving “new or novel” principles.3 Frye did not apply to “pure opinion” testimony.4 As we all know, the U.S. Supreme Court in 1993 adopted the Daubert “gatekeeping” standard for expert testimony in federal courts.5 While many states have adopted the Daubert standard, the Florida Supreme Court “repeatedly reaffirmed [its] adherence to the Frye standard for the admissibility of evidence,”6 characterizing Daubert as a “more lenient standard” and Frye as “the higher standard of reliability.”7 In 2013, the Florida legislature sought to institute the Daubert standard on its own. It amended sections 90.702 and 704, Florida Statutes. Section 702 (“Testimony by experts”) was amended to mirror the federal Daubert standard for expert testimony and to expressly reject “pure opinion” testimony.8 Section 704 (“Basis of expert testimony”) also was amended to match the federal standard, which requires a reverse-403 analysis in determining whether an expert may disclose otherwise inadmissible reliance evidence to the jury; but this amendment was unrelated to Daubert.9 In early 2017, the Florida Supreme Court declined to adopt the legislative amendments, to the extent they are procedural, as rules of evidence. It expressed “grave concerns” regarding the constitutionality of the Daubert amendment with respect to the right of access to courts and the right to trial by jury. However, it did not decide the consti-

46 | November/December 2018 | www.FloridaJusticeAssociation.org

tutionality of the amendment because the case before it was a “rules” case, i.e., a decision whether to adopt the amendments and not a true case or controversy.10 DeLisle presented a true case or controversy, and the Court struck down the amendments.

The Majority Opinion

DeLisle involved a products liability case brought against various asbestos manufacturers and Lorillard Tobacco Company. The trial court applied the Daubert standard and admitted plaintiff’s expert testimony. Ultimately, the jury awarded $8 million in damages apportioned between various defendants. On review, the Fourth DCA reversed the verdict in part because it found the trial court failed to properly exercise its gatekeeping function under the Daubert standard. The Supreme Court granted review on the basis that DeLisle conflicted with its pre-amendment opinion in Marsh v. Valyou, 977 So.2d 543 (Fla. 2007).11 Justice Quince authored the majority opinion — joined by Justices Pariente, Lewis and LaBarga — and held the Daubert amendment to §90.702 infringes upon the court’s rulemaking authority.

Justice Pariente concurred separately, joined by Justice LaBarga. Justice LaBarga concurred separately, joined by Justice Pariente. Justice Canady dissented and was joined by Justices Polston and Lawson.

To appreciate the basis for the opinion, understand that the Florida Legislature adopted (codified) the Florida Evidence Code in Chapter 90 of the Florida Statutes. To the extent any codification pertains to matters of substantive law, it is within the legislature’s constitutional purview. However, the Supreme Court maintains constitutional authority over “rules for the practice and procedure in all courts”12 and must adopt codifications to the extent they are procedural to ensure seamless application of the statutory provisions as rules of evidence. Or the Court may decline to do so and ultimately may be called upon to determine the constitutionality of a given enactment, e.g., whether it violates the separation of powers or whether it suffers some other constitutional defect such as depriving citizens of the right to trial by jury or the right of access to courts. Where the procedural requirements of a statute “conflict with or interfere with the procedural mechanisms of the court system, they are unconstitutional under both a separation of powers analysis, and because [they intrude upon] the exclusive province of the Supreme Court pursuant to the rulemaking authority vested in it by the Florida Constitution.”13 As the DeLisle decision explains, “‘[r]ules of evidence may in some instances be substantive law and, therefore, the sole responsibility of the legislature. In other instances, evidentiary rules may be procedural and the responsibility of this Court.’ We therefore chose to adopt the rules, ‘[t]o avoid multiple appeals and confusion in the operation of the courts caused by assertions that portions of the evidence code are procedural and, therefore, unconstitutional because they had not been adopted by this Court under its rule-making authority.’”14 The majority opinion goes on to explain the difference between substantive law (subject to legislative enactment) and procedural law (within the Court’s rulemaking authority):

Substantive law has been described as that which defines, creates, or regulates rights — “those existing for their own sake and constituting the normal legal order of society, i.e., the rights of life, liberty, property, and reputation.” Procedural law, on the other hand, is the form, manner, or means by which substantive law is implemented.

Stated differently, procedural law “includes all rules governing the parties, their counsel and the Court throughout the progress of the case from the time of its initiation until final judgment and its execution.” “It is the method of conducting litigation involving rights and corresponding defenses.”15 In determining whether the Daubert amendment concerned substantive or procedural law, the Court cites to Hadden v. State, 690 So.2d 573 (Fla. 1997), which “rejected the argument that the Legislature’s enactment and this Court’s subsequent adoption of the Evidence Code replaced the Frye standard with the balancing test that existed in the code.”16 Hadden reiterated the court’s commitment to Frye while necessarily implying that the admissibility of expert testimony is a procedural matter.

The DeLisle court so held without reservation: “Section 90.702, Florida Statutes, as amended in 2013, is not substantive. It does not create, define, or regulate a right…. [T]his statute is one that solely regulates the action of litigants in court proceedings.”17 Once the Court determines the enactment concerns a procedural matter, the next question is whether the amendment conflicts with a rule of the Court.18 “Rules of the court” includes caselaw pronouncements, like Frye.19 Of course, the Daubert amendment was adopted for the express purpose of overturning Marsh v. Valyou,20 which held that Frye does not apply to pure opinion testimony on medical causation because such opinions are not new or novel. The Court accordingly found that the amendment to section 90.702, Florida Statutes, infringes upon the Court’s rulemaking authority; it reiterated that Frye remains the standard for admissibility of expert testimony in Florida; and it reminded all that “Frye is inapplicable

to the vast majority of cases because it applies only when experts render an opinion that is based upon new or novel scientific techniques.”21

The Concurring Opinions

Justice Pariente wrote separately (joined by Justice Labarga) to express her agreement with the majority opinion that the Daubert amendment infringes on the Court’s rulemaking authority, but also to “express [her] belief that the Daubert amendment also has the potential to unconstitutionally impair civil litigants’ right to access the courts.”22 She noted that “defendants often exploit the requirements of Daubert as a sword against plaintiff’s attorneys,” resulting in “a minefield clogged with ‘Daubert hearings’ that are more lengthy, technical, and diffuse than anything that preceded them.”23 She also noted that Daubert allows an appellate court to “usurp the function of the trial court in ruling on admissibility of evidence that is neither new nor novel, and the role of the jury in weighing the evidence and rendering a verdict.”24 Justice Pariente concluded her concurrence with the observation that Daubert “does nothing to enhance the factfinding process, and instead, displays a gross mistrust of the jury system.”25 Indeed.

Justice Labarga (joined by Justice Pariente) wrote a brief concurrence reiterating his commitment to the majority’s rationale while also addressing the Court’s jurisdiction. Put simply, the lower court decision in DeLisle applying the Daubert standard “conflicts with earlier decisions by this Court” rejecting Daubert and embracing Frye.26 Regardless of whether those decisions pre-dated or post-dated the Daubert amendment, conflict remained between the Fourth DCA’s application of the Daubert standard and Supreme Court decisions rejecting that standard.

The Dissent

Justice Canady (joined by Justices Polston and Lawson) dissented on jurisdictional grounds. The dissent gives a close and narrow reading of

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EVIDENCE

the Court’s conflict jurisdiction, which is limited (in this instance) to decisions that expressly and directly conflict with other DCA decisions or those of the Supreme Court “on the same question of law.”27 In the dissent’s view, because the question of law below concerned the Daubert amendment, and the purportedly conflicting decisions pre-dated that amendment, jurisdiction did not obtain: “We have long recognized that a case decided on the basis of a statutory provision cannot be in conflict with an earlier case that pre-dated the effective date of that statutory provision. This follows from the self-evident proposition that one case decided on the basis of a statute and another case decided prior to the effective date of the statute on the basis of previous governing law do not — and could not — address ‘the same question of law.’”28 There is a compelling logic in this approach for the normal run of cases.

How can a decision applying or interpreting a statute conflict with a decision that preceded enactment of the statute? The dissent cites a case where review was denied precisely because the conflict case arose prior to the effective date of the controlling statute.29 But there is a distinction here in that the controlling statute in the decision under review was enacted for the express purpose of overturning the pre-amendment conflict case(s). Where a statute is enacted specifically to overturn a Supreme Court decision (or line of decisions that repeatedly rejected

§90.702, Fla. Stat. (2012). If challenged, the expert was required to have a sufficient factual basis for the opinions and inferences expressed. §90.705, Fla. Stat. (2012).

2 See, e.g., Marsh v. Valyou, 977 So.2d 543, 548 (Fla. 2007) (defining “pure opinion” testimony as opinion “based on [the expert’s] experience and training”).

3 Castillo v. E.I. Du Pont De Nemours & Co., 854 So.2d 1264, 1268 (Fla.2003) (noting that Frye applies only “when the expert attempts to render an opinion that is based on new or novel scientific techniques” and holding that “the proponent of the evidence bears the burden of establishing by a preponderance of the evidence the general acceptance of the underlying scientific principles and methodology”).

4 Marsh, 977 So.2d at 548 (“It is well-established that Frye is inapplicable to ‘pure opinion’ testimony.”)

5 Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).

6 Marsh, 977 So.2d at 547.

7 Brim v. State, 695 So.2d 268, 271–72 (Fla.1997).

8 Ch. 2013-107 §1, Laws of Fla. (2013).

9 Ch. 2013-107 §1, Laws of Fla. (2013). It is doubtful whether the amendment to 90.704 changed Florida law in any meaningful way, as I wrote in the July/August 2014 edition of the Journal (“Spotlight: Experts as Conduits for Hearsay”).

10 In re: Amendments to Fla. Evidence Code at 9, 2017 WL 633770 at *5. The Court accepted the recommendation of the Florida Bar’s Code & Rules of Evidence Committee to decline adoption of the Daubert amendments. In the interests of full disclosure, I served on the committee and voted with the majority to recommend that the court decline to 1

what the enactment seeks to secure), then any decision applying that statute necessarily conflicts with the earlier decisions. Justice Canady expresses concern that the Court is expanding its conflict jurisdiction “to encompass every case in which a district court applies a statute that has changed a legal rule in any area of the law.”30 This type of assertion in dissent often is held up as proof that the majority opinion was indeed sweeping in its breadth. But that need not be so here. The legislative preamble identifying Marsh as its target arguably sets this case apart from the larger run of cases described by Justice Canady. If one wishes to argue for a limiting principle, it is that DeLisle does not involve a casual or coincidental collision between a statute and preexisting caselaw.

The enactment here was meant to overturn a specific line of Supreme Court cases. In this narrower run of such cases, it is hard to argue with Justice Labarga’s conclusion that application of the statutory standard necessarily conflicts the pre-amendment caselaw. All of this said, Justice Canady certainly is correct that the issue could have been more squarely presented had the constitutionality of the Daubert amendment been challenged and preserved in the lower courts.

What Was Not Addressed—§90.704

The Daubert amendment was a modification to 90.702. At the same time the legislature amended 90.704 (Basis of opinion testimony by

adopt the Daubert amendments.

11 The dissent refused to find jurisdiction because Marsh was decided under an earlier version of the statute, i.e., it was decided before the Daubert amendment was enacted.

12 Art. V, §2(a) Fla. Const.

13 DeLisle, 2018 WL 5075302 at *6 (quoting Jackson v. Florida Dep’t of Corrections, 790 So.2d 381 (Fla. 2000) (alteration in original). The two seem to me to be the same—a legislative intrusion into the judicial rulemaking power is a separation of powers issue.

But the point remains that once the legislature has overstepped into matters of procedure, any conflict between the enactment and existing court rules will doom the enactment.

14 Id. at *3 (quoting In re Fla. Evidence Code, 372 So.2d 1369 (Fla. 1979)).

15 Id. at *4 (quoting In re Fla. Rules of Criminal Procedure, 272 So.2d 65 (Fla. 1972) (Adkins, J., concurring) (citations omitted).

16 Id. 17 Id. at *7.

18 “Where this Court promulgates rules relating to the practice and procedure of all courts and a statute provides a contrary practice or procedure, the statute is unconstitutional to the extent of the conflict.”

Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So.2d 730 (Fla. 1991).

19 DeLisle, 2018 WL 5075302 at *7.

20 Id.at *6 (noting the preamble, which stated, “the Florida Legislature intends to prohibit in the courts of this state pure opinion testimony as provided in Marsh….”).

21 Id. at *8.

22 Id. at *9 (Pariente, J., concurring).

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Id. (quoting David Crump, The Trouble with Daubert-Kumho: Reconsidering the Supreme Court’s Philosophy of Science, 68 Mo. L. Rev. 1, 1 (2003)).

24 Id. at *13. In an earlier evidence column, I noted that the trial court’s “gatekeeping” role under Daubert vests the court with authority over matters that in pre-amendment cases would have been reserved to the jury, giving rise to an argument that the Daubert amendment deprives litigants of their right to trial by jury.

25 Id. 26 Id. at *14 (Labarga, J., concurring).

27 Id. at *14 (Canady, J., dissenting).

28 Id. 29 Id. (citing In re Interest of M.P., 472 So.2d 732 (Fla. 1985)).

30 Id. at *15.

31 Expert Witnesses in Civil Trials §3:2 (2014). Compare to Duss v. Garcia, 80 So.3d 358, 364-65 (Fla. 1st DCA 2012) (allowing expert to testify about the results of an NIH study where it aided in explaining his conclusions and was not merely to bolster his opinion or to serve as a conduit for otherwise inadmissible evidence); Houghton v. Bond, 680 So.2d 514, 522 (Fla. 1st DCA 1996) (allowing expert to reveal contents of government study he relied upon where it would aid the jury’s understanding and he was not being used as a mere conduit for otherwise inadmissible evidence); Kloster Cruise, Ltd. v. Rentz, 733 So.2d 1102, 1103 (Fla. 3d DCA 1999) (permitting expert to show otherwise inadmissible weather data where it was “the beginning point for analysis, but some further analysis was required by the expert in order to apply the data.”)

32 DeLisle, 2018 WL 5075302 at *7.

23

experts). The amended statute requires a reverse-403 analysis in determining the admissibility through experts of hearsay and otherwise inadmissible evidence relied upon by the expert in reaching his or her opinions. The legislature intended to restrict the admission of such evidence but, ironically, as addressed in my July/August 2014 Evidence column, the federal cases construing the counterpart federal rule apply essentially the same test that had been applied by Florida courts based on the pre-amendment rule. Namely, as summarized by one federal treatise: where a party “is transparently attempting to utilize an expert as a mere conduit to place certain inadmissible items of evidence before the jury, those items of evidence are likely to be excluded upon objection. However, where the matters truly serve as an integral part of an accepted scientific process whereby the expert formed her opinion, they are more likely to be allowed into evidence.”31 An expert may not be used as a “mere conduit” for otherwise inadmissible evidence; but there are situations where permitting the expert to explain the basis for the opinion is helpful to the jury even if that explanation includes hearsay or otherwise inadmissible evidence relied upon in reaching the opinion. It is difficult to explain to a judge that the legislature intended to restrict the admission of such evidence but adopted a standard quite similar to the standard they were seeking to refine. Despite the legislature’s intent, the adoption of the federal standard in §90.704 really didn’t change much.

Although the constitutionality of the 2013 amendment to 90.704 was not before the DeLisle court, it is hard to imagine it withstanding constitutional scrutiny. As with the amendment to 90.702, “does not create, define, or regulate a right. … [It] solely regulates the action of litigants in court proceedings.”32 For this question to reach the Supreme Court, it would have to be preserved as a constitutional challenge in the lower court (given that the statute was not amended for the express purpose of overruling a prior Supreme Court precedent), the trial court will have to have excluded hearsay an expert sought to convey to the jury, and that ruling would have to be so prejudicial as to warrant reversal. This seems unlikely, so I would imagine we will get used to the reverse-403 analysis of such matters. But, again, there is a compelling argument that pre-amendment Florida caselaw on this question is consistent with federal caselaw applying the reverse-403 standard, so nothing much has changed.

MATT SCHULTZ

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

FJA would like to personally thank David Scarola for stepping in literally at the last minute and taking great photos at the Masters of Justice Founders’ Awards Luncheon.

Our event photographer’s travel to the event was derailed

by Hurricane Michael, and that’s when Scarola volunteered and rose to the occasion. Even though this was a last-minute assignment, the quality and breadth of the photography was excellent. We encourage any members looking for a photographer to consider working with David.

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CIVILPROCEDURE

The Times, They Are a-Changin’ Goodbye to Five Days Added After Service By Email

By Roy D. Wasson

In an out-of-cycle decision amending various Florida Rules of Court, the Supreme Court of Florida recently changed several rules dealing with computing time and calculating deadlines for action. In In re Amendments to the Fla. Rules of Civil Proc., No. SC17-882, 2018 Fla. LEXIS 2049 (10-25-2018) (hereinafter “2019 Rule Amendments”), the Court also approved other amendments to the Rules of Civil Procedure. All the amendments are effective on January 1, 2019. This article summarizes those amendments and comments on some of the consequences thereof.

One of the most significant changes to all the court rules is that subdivision (b) of the Florida Rules of Judicial Administration (Computing and Extending Time) is amended to remove “or e-mail,” so that service by postal mail and e-mail are no longer treated identically. Before the advent of service by facsimile and email, deadlines triggered by service of a motion, order or other paper were calculated differently depending on whether the paper was served by U.S. mail or by delivery. When a response was due to be filed or served a set number of days following “service” of a paper, an additional five

days was added to the period when the paper was served by mail, to account for the delay between mailing the paper that triggered the deadline and its receipt by the party who must act thereon.

Upon the advent of e-filing and electronic service of court papers, the Rules of Civil Procedure were amended to provide that the additional five-day period for acting after service by mail would also be added to the time to take action after service of a paper by email. Although the recipient of a paper served by email receives the paper almost instantaneously (and certainly on the same day it was served, unless served almost at midnight), the five-day additional time period to take action was provided, assumedly in recognition of the fact that lawyers (who are not widely regarded as technologically savvy) would need more time to process court filings served electronically than those delivered by hard copy to their desks. But now email is so common that the need to treat email service differently than delivery has waned.

The Court in removing the additional five days for action following service of a paper by email noted: “E-mail, unlike postal mail, is now nearly instantaneous and no additional time should be permitted for responses to documents served by e-mail.” 2019 Rule Amendments, supra, at *4. The revised Fla. R. Jud. Admin. 2.514(b) will now read: “(b) Additional Time after Service by Mail. When a party may or must act within a specified time after service and service is made by mail or e-mail, five days are added after the period that would otherwise expire under subdivision (a).” Id. at *8. Consistent with that revision, the Court also deleted from Rule 2.516(b)(1)(D)(iii) the provision that “E-mail service, including e-Service, is treated as service by mail for the computation of time.”

While the Court took away a five-day period that many lawyers have come to rely upon in taking responsive action, the Court made other amendments that soften the effect of the amendment to Rule 2.514(b). In the past, if a document was served upon you on a Friday, the period for taking responsive action would start on the next day, Saturday, and that intervening weekend would be counted in calculating the time to respond. In other words, if an order directed

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a litigant to file something within “five days of service hereof,” and that order was served on a Friday, such as Jan. 4, 2019, the five-day period would expire on Wednesday, Jan. 9, giving the party directed to take action only three business days to act. In its recent decision the Court stated: “We also amend subdivision (a)(1)(A) of that rule [2.514]so that time frames are calculated beginning from the next day following the event that triggers the time frame that is not a weekend or legal holiday.” 2019 Rule Amendments at *4. Thus, starting January 1, if an order directing a response is served on Friday, January 4, the first day of that five-day period will be Monday, January 7, and the five-day period will expire on January 11, essentially giving back the two days lost during the first weekend.

Until this revision to the rules, lawyers seeking information about calculating the deadlines to respond to filings were directed first to the Rule of Civil Procedure 1.080, which then redirected the reader to Rule of Judicial Administration 2.514. It was frustrating that one would need to look in two different sets of rules to find out when a deadline expired. In the present revision the Court noted that “Rules of Civil Procedure 1.170 (Counterclaims and Crossclaims), 1.260 (Survivor; Substitution of Parties), 1.351 (Production of Documents and Things Without Deposition), 1.410 (Subpoena), 1.440 (Setting Action for Trial), 1.442 (Proposals for Settlement), and 1.510 (Summary Judgment) are amended to directly reference Rule of Judicial Administration 2.516 (Service of Pleadings and Documents) instead of referencing Rule of Civil Procedure 1.080 (Service and Filing of Pleadings, Orders, and Documents).” 2019 Rule Amendments, supra, at *4. A similar shortcut was adopted in the Rules of Criminal Procedure by amended Rule 3.040. Id. at *5.

One welcome clarification to the civil rules is in the rule governing when responsive material in opposition to motions for summary judgment must be served upon the movant’s counsel, when served electronically. The Court stated: Lastly, we also amend rule 1.510 in subdivision (c) (Motion and Proceedings Thereon) to treat summary judgment evidence submitted electronically or by e-mail the same as summary judgment evidence that is “delivered,” providing that while service by mail must take place at least five days prior to the day of the hearing, service by delivery, e-filing, and e-mail must take place no later than two days prior to the day of the hearing.

2019 Rule Amendments at *5.

Apparently, the Appellate Court Rules Committee holds considerable sway with the Supreme Court. That committee lobbied long and hard to keep the additional five days to take action after service of appellate documents by email. Although the Court denied that request, so as to keep the computation method consistent with the other bodies of court rules, the Court essentially provided appellate lawyers with the same additional five days they were seeking in another way. Instead of adding five days following service by email, the Court lengthened by five days the deadlines to take action in several common situations, holding:

The Rules Committees’ proposed amendments to the Rules of Appellate Procedure all concern enlarging time frames. The Rules Committees’ report indicates that in response to the proposed amendments to Florida Rule of Judicial Administration 2.514 removing the additional five days when service is made by e-mail, the Appellate Court Rules Committee originally proposed amending the Rules of Appellate Procedure to retain the additional five days for service by e-mail. The Board of Governors expressed concerns about the removal of the five days from the other bodies of rules when service is made by e-mail, while maintaining the five days for e-mail service in the Rules of Appellate Procedure. The Board of Governors suggested that the Committees attempt to come to an agreement that would address its concerns and maintain one rule for computation of time. The amendments proposed here reflect a compromise among the Rules Committees to address the Appellate Court Rules Committee’s concern about the loss of the five additional days to respond to service of a document by e-mail.

We amend rules 9.100 (Original Proceedings), 9.110 (Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Nonjury Cases), 9.120 (Discretionary Proceedings to Review Decisions of District Courts of Appeal), 9.125 (Review of Trial Court Orders and Judgments Certified by the District Courts of Appeal as Requiring Immediate Resolution by the Supreme Court of Florida), 9.130 (Proceedings to Review Nonfinal Orders and Specified Final Orders), 9.140 (Appeal Proceedings in Criminal Cases), 9.141 (Review Proceedings in Collateral or Postconviction Criminal Cases), 9.142 (Procedures for Review in Death Penalty Cases), 9.146 (Appeal Proceedings in Juvenile Dependency and Termination of Parental Rights Cases and Cases Involvwww.FloridaJusticeAssociation.org | November/December 2018 | 51

CIVILPROCEDURE

ing Families and Children in Need of Services), 9.180 (Appeal Proceedings to Review Workers’ Compensation Cases), 9.200 (The Record), 9.210 (Briefs), 9.300 (Motions), 9.320 (Oral Argument), 9.330 (Rehearing; Clarification; Certification; Written Opinion), 9.331 (Determination of Causes in a District Court of Appeal En Banc), 9.350 (Dismissal of Causes), 9.360 (Parties), and 9.410 (Sanctions) to enlarge time frames as proposed.

2019 Rule Amendments at **6-8.

A final rule change dealing with time deadlines was the Court’s amendment of Rule 1.351 “to reduce the time frame for parties to serve by e-mail a notice of intent to serve a subpoena requesting production of documents and things from fifteen to ten days.” Id. at **4-5.

Case Summaries in Civil Procedure: Proposals for Settlement

In Allen v. Nuñez, No. SC16-1164; 2018 Fla. LEXIS 1840; 43 FLW S421; 2018 WL 4784606 (Fla. 10-4-2018), the Court reversed the Fifth District Court of Appeal, which had itself reversed an award of attorneys’ fees of $343,590, finding an ambiguity in the proposal for settlement which led to that fee award. The proposal, which was made by the plaintiff against one of several defendants in the case, contained the language required by Fla. R. Civ. P. 1.442 “that the proposal for settlement was inclusive of ‘all damages’ claimed by [the plaintiff].” Id. LEXIS at *4. The Fifth District had found the language ambiguous because it “could be reasonably interpreted to mean that the acceptance of the proposal for settlement by only one of the defendants resolved the plaintiffs entire claim against both defendants.” The Supreme Court rejected that argument, continuing with the recent trend in cases analyzing proposals for settlement in a less nit-picking manner to recognize their efficacy. The Court held that it was obvious that there was only one party’s claim sought to be resolved by the proposal, so it should be enforced.

Federal Removal and Remand

In Dever v. Family Dollar Stores, No. 18-10129; 2018 U.S. App. LEXIS 31063 (11th Cir. 11-2-2018), the court reversed the trial court’s ruling denying the plaintiff’s motion to add the store manager as a defendant, which would have destroyed diversity jurisdiction and required remand of the case to state court from which it was removed. Noting that “[w]e have not previously addressed how a district court should decide whether to permit or deny joinder of a non-diverse defendant after removal,” the court established the standard as follows: In deciding whether to permit a plaintiff to join a nondiverse defendant after removal, a district court should “consider the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether [the] plaintiff has been dilatory in asking for amendment, whether [the] plaintiff will be significantly injured if amendment is not allowed, and any other factors bearing on the equi52 | November/December 2018 | www.FloridaJusticeAssociation.org

ties.” The court then must balance the equities and decide whether the amendment should be permitted,” requiring “that the district court also balance the Defendant’s interests in maintaining the federal forum.”

Id. at *7. Because the plaintiff had attempted to join the store manager prior to removal, but had the wrong name for that manager, the court held that it was an abuse of discretion to deny amendment without having considered the fact that the plaintiff sought to join a non-diverse party prior to removal.

Dismissal for Failure to Attend Case Management Conference Reversed

Reversing the trial court’s dismissal of the plaintiff’s case because plaintiff’s counsel failed to attend a case management conference, the court held that the dismissal order failed to contain “findings that such failure was willful, flagrant, deliberate, or otherwise aggravated,” and should have been excused because the order setting the conference was caught in the attorney’s spam filter and could not have been anticipated because service of process had yet to be effectuated on another defendant. See Pipeline Constructors, Inc. v. Transition House, Inc. No. 1D17-1867; 2018 Fla. App. LEXIS 14846 at * 4 (Fla. 1st DCA 10-18-2018).

Default Affirmed Notwithstanding the Lack of Notice to Defense Counsel

Rejecting a defaulted defendant’s contention “that because they filed a motion for extension of time, they were entitled to a hearing prior to an entry of default,” the court held that the defendant was entitled to notice of the plaintiff’s application of default by the judge but was not entitled to notice of the hearing thereon because, “[a]lthough the filing of a notice of appearance or a motion for an extension of time constitutes ‘any paper’ requiring notice prior to entry of a default, they are not ‘responsive pleadings’ reflecting the intent to defend the merits of the action and requiring a hearing to be set with notice of that hearing prior to entry of the default.” Robles v. Fannie Mae, No. 3D17-2798; 2018 Fla. App. LEXIS 14341; 43 FLW D2301; 2018 WL 4904925 (Fla. 3rd DCA 10-2018) at **4-5.

The “times they are (always) a-changin’” in the courts of Florida. It is hard to keep up with all the rules for calculating deadlines, especially for lawyers who try cases in both state and federal courts. We at the FJA hope that, with help from this Journal, our members will be able to ...

Keep tryin’!

ROY D. WASSON

is board certified in appellate practice with extensive courtroom experience in more than 600 appeals and thousands of trial court cases. He is an EAGLE patron, a former member of the FJA Board of Directors, a fellow of the Academy of Florida Trial Lawyers, a past chairman of the FJA Appellate Practice Section, and a member and past chair of the Amicus Curiae Committee. Wasson 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.

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CLOSINGARGUMENTS

Opening Statement

by Philip M. Burlington, Barbara Green and Christopher V. Carlyle

Function of Opening Statement

Issues concerning closing argument and opening statement frequently arise in the same case. The rules limiting closing argument generally apply to opening statement, but there are also important differences arising from their different purposes. This article discusses the function of opening statement and the rules that apply to it.

Opening statement is an essential part of any trial. Despite this, there is no statute or rule giving the parties in civil cases the right to make opening statements. In fact, an early Florida Supreme Court case stated outright that there was no right at all to make an opening statement; it was within the trial court’s discretion. Juhasz v. Barton, 1 So.2d 476 (Fla. 1941). In Juhasz, the court held it was not error to limit the plaintiff’s opening to reading the pleadings to the jury.

Since Juhasz, however, the concept of opening statement has evolved through case law. Courts now recognize that “many experienced trial lawyers contend, and the available empirical jury studies tend to confirm, an opening statement is frequently the most critical stage in the trial of a lawsuit, as here the jury forms its first and often lasting impression of the case.” Maleh v. Fla. E. Coast Prop., Inc., 491 So.2d 290, 291 (Fla. 3rd DCA 1986). According to the current view, opening statement must be “more than a bland, bare-bones overview of the case with no opportunity to delve into the critical details of the forthcoming testimony.” 491 So.2d at 291.

[A] properly presented opening statement familiarize[s] the jury with the evidence, the nature of the case, and each party’s theory of recovery and defense. It allows jurors to better understand the evidence as it is introduced and to more accurately discern its force, effect and weight.

Chin, 42 So.3d at 307 (citation omitted).

Opening Statement Is Not Evidence and Should Not Be Used as the Basis for a Directed Verdict

Opening statement is not evidence. Therefore, a court should not direct a verdict based solely on the overview presented in opening statement, before the plaintiff has had the opportunity to present any evidence. Van Hoven v. Burk, 71 So.2d 158 (Fla. 1954); Porro v.

Franco, 448 So.2d 614 (Fla. 3rd DCA 1984). Nor is an opening statement by counsel an admission “in the technical sense.” Plaks v. Fla. E. Coast Ry. Co., 175 So.2d 216, 217 (Fla. 3rd DCA 1965). In Plaks, the court held that, even though defense counsel admitted in opening that his client was the engineer of the train involved in a collision, the plaintiff was still required to prove that fact with evidence at trial.

Opening Statement May Open THe Door to Certain Evidence

Still, opening statement has a “limited purpose” — “to set out the relevant, and only the relevant, facts of the case.” Music v. Hebb, 744 So.2d 1169 (Fla. 2nd DCA 1999). To briefly “outline what a party expects to prove in support of his cause of action or defense.” Chin v. Caiaffa, 42 So.3d 300, 307 (Fla. 3rd DCA 2010), quoting Juhasz, 1 So.2d at 478. Opening statement gives the jury a context for the evidence it is going to see and hear.

Even though it is not itself evidence, an attorney’s opening statement may open the door to certain kinds of evidence that might otherwise be inadmissible. For example, in Smith v. Hooligan’s Pub & Oyster Bar, Ltd., 753 So.2d 596 (Fla. 3rd DCA 2000), the court held that the defendant opened the door to evidence of the decedent’s good character by attacking his character in opening statement. Similarly, in Simmons v. Roorda, 601 So.2d 609 (Fla. 2nd DCA 1992), the plaintiff opened the door to the defendant’s “work achievements” by talking in opening about the defendant’s “poor work performance.”

Jurors are instructed that, in opening statement, “an attorney is allowed to give you [his] [her] views about what the evidence will be in the trial and what you are likely to see and hear in the testimony.”

Fla. Std. Jury Inst. 202.2.

On the other hand, in Dungan v. Ford, 632 So.2d 159 (Fla. 1st DCA 1994), the court held that the plaintiff’s counsel did not open the door to evidence that the surgery plaintiff had undergone was inappropriate merely by stating in opening that he expected defendant

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to say, as they had in the past, that the plaintiff should not have had the surgery or should not have had it done by a particular doctor.

Similarly, a party does not waive an objection by referring to an issue in opening after the court has denied a motion in limine. E.g., Porter v. Vista Building Maint. Serv, Inc., 630 So.2d 205 (Fla. 3rd DCA 1994).

Opening Statement Is More Restricted than Closing Argument

The parameters of opening statement are more restrictive than those of closing argument. Because of its limited purpose to give the jury an overview of, and context for, what the evidence is expected to show “an opening statement ... is not an occasion for argument.” U. S. v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J., concurring).

Florida courts have required new trials when they found the opening statement to be “overly argumentative.” See R.J. Reynolds Tobacco Co. v. Calloway, 201 So.3d 753, 765 (Fla. 4th DCA 2016).

Opening statement must be confined to what the party intends to prove with evidence. Chin v. Caiaffa, 42 So.3d 300, 307 (Fla. 3rd DCA 2010). It is legally and ethically improper for counsel in opening to tell the jury something he or she does not reasonably expect to prove. Id. If there are significant evidentiary issues that have not been resolved before trial, counsel should consider requiring a ruling that “iffy” evidence will not be mentioned in opening statement.

Padovano, 5 Fla. Prac., Civil Practice §18.2: Opening Statements: Permissible Comment (2018).

Counsel is not permitted to tell the jury who got the ticket, or that nobody got a ticket, because that is not admissible in evidence. Lindo’s Rent a Car v. Standley, 590 So.2d 1114 (Fla. 4th DCA 1991). It was improper to tell the jury in opening that an expert reviewed additional tests, when counsel knew his or her testimony about those tests had been excluded. Irizarry v. Moore, 84 So.3d 1069 (Fla. 5th DCA 2012).

In addition, arguments and comments that are improper in closing argument are improper in opening statement.

Appeals to sympathy and comments on wealth or poverty are prohibited, as are golden rule arguments Id. at 308; Samuels v. Torres, 29 So.3d 1193 (Fla. 5th DCA 2010) (disclosure of defendant’s “meager income” in opening required new trial); Gov’t Employees Ins. Co. v.

Kisha, 160 So.3d 549 (Fla. 5th DCA 2015). In a case against an insurer, it is improper to discuss in opening the length of time the plaintiff has been insured. Kisha, 160 So.3d at 552-553.

It is also improper in opening statement to chastise the defendant for failing to apologize, Calloway, 201 So.3d at 765; or to denigrate the defense; or to suggest that the defendant should be punished for contesting the plaintiff’s claim. Fasani v. Kowalski, 43 So.3d 805 (Fla. 3rd DCA 2010).

“Conscience of the community” arguments are improper in opening statement, but they may not be reversible if not accompanied by a request to punish the defendant, where a curative instruction is given.

Hood v. Valle, 979 So.2d 961 (Fla. 3rd DCA 2008).

And, while it is improper for defense counsel, in opening statement, to accuse the plaintiff of challenging the defendant’s livelihood, a curative instruction may be sufficient to cure the prejudice. Gatten v.

Zachar, 932 So.2d 543 (Fla. 5th DCA 2006).

It should go without saying that appeals to racial or religious prejudice are improper. However, discussions of racial or religious issues that are relevant to the case are permissible. Engle v. Liggett Group, 945 So.2d 1246, 1272-73 (Fla. 2006).

Objections and Preservation of Issues for Appeal

The same rules for preservation of objections apply in opening and closing. See generally, e.g., Carnival Corp. v. Jiminez, 112 So.3d 513, 519-22 (Fla. 2nd DCA 2013), citing Murphy v. Int’l Robotics Sys., Inc., 766 So.2d 1010 (Fla. 2000). Preservation of objections will be the subject of a forthcoming article. Briefly, a specific, contemporaneous objection is required. If the objection is overruled, nothing further needs to be done during trial. If it is sustained, a request for curative instruction and motion for mistrial are required. Unpreserved error may be raised in a motion for new trial, but a higher, fundamental error standard applies. Murphy, supra. But see White v. Consolidated Freightways Corp., 766 So.2d 1228 (Fla. 1st DCA 2000) (specific objection to assertion in opening statement that nobody told the investigating officer that defendant’s driver had anything to do with accident was preserved when plaintiffs moved for mistrial at conclusion of opening statement, and stated that proposed curative instruction was insufficient).

A party may ask the court to reserve ruling on a motion for mistrial made during opening statement, and the court has discretion to do so. Ricks v. Loyola, 822 So.2d 502 (Fla. 2002).

Preemptively mentioning something in opening statement, in an effort to limit its impact, after a court has definitively denied that party’s motion in limine, does not waive the objection. Porter v.

Vista Building Maint. Serv., Inc., 630 So.2d 205 (Fla. 3rd DCA 1993), decision approved, Sheffield v. Superior Ins. Co., 800 So.2d 197 (Fla. 2001).

Adequate Time for Opening Statement

Consistent with the modern view that opening statement should be “more than a bland, bare-bones overview of the case with no opportunity to delve into the critical details of the forthcoming testimony,” Maleh, 491 So.2d at 291, the Third DCA repeatedly has held that adequate time must be permitted for opening statement. Courts consider factors such as the length and complexity of the trial and the number of witnesses.

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CLOSINGARGUMENTS

In Maleh, the court held that it was reversible error to limit the plaintiff’s opening statement to five minutes, and closing argument to fifteen minutes, in a “hotly contested” case in which nine witnesses testified about liability and seven witnesses testified about damages, resulting in a “rushed, scatter-gun presentation which had no real coherence to it.”

he was “going to have to talk a little fast,” and apologized to the jury “for going so fast.” The court said that the appellant demonstrated that “it was plainly a rushed presentation in which counsel was unable to preview the testimony of each of the sixteen witnesses or to go into any detail concerning the critical testimony relating either to the accident or the injuries and other damages ...” 491 So.2d at 291.

Similarly, in Cohn v. Julien, 574 So.2d 1202 (Fla. 3rd DCA 1991), the court reversed because the trial court restricted plaintiff’s counsel to 15 minutes for voir dire and 15 minutes for opening statement in a “complex and difficult” medical malpractice wrongful death case.

And, in Knapp v. Shores, 550 So.2d 1155 (Fla. 3rd DCA 1989), disapproved on other grounds, Bulldog Leasing Co. v. Curtis, 630 So.2d 1060, 1061 (Fla. 1994), the court reversed because of unreasonable time limits on voir dire and closing argument, and said that a 10-minute limit on plaintiffs’ opening statement would have been an alternative ground for reversal, if it had been preserved. Knapp involved an automobile collision with two plaintiffs. Liability was admitted and, although only damages were at issue, one of the plaintiffs alleged brain damage; the medical evidence was complex, twenty witnesses testified, and the trial lasted seven days.

Conclusion

Other courts have used similar reasoning and made similar rulings with respect to time limits on closing argument. E.g., Bell v. Harland Rayvals Transp., Inc., 501 So.2d 1321 (Fla. 4th DCA 1987); Strong v.

Mt. Dora Growers Coop., 495 So.2d 1238 (Fla. 5th DCA 1986). So, it may be logical to anticipate similar views by those courts with respect to opening statements.

The Third District also has held that, where there are multiple defendants with different theories of defense, the plaintiff must be allowed the same total amount of time as the defendants’ total time.

Bullock v. Mount Sinai Hosp. of Greater Miami, Inc., 501 So.2d 738 (Fla. 3rd DCA 1987).

While we have not found a clear holding of what exactly must be done to preserve the issue of time limits for review, the courts sometimes discuss an attorney’s efforts to do so. Counsel would be wise to include, in any request for time or objection to time limits, a brief discussion of the number of witnesses and the complexity of the issues and testimony that they expect. In Maleh, for example, the attorney “strongly protested” the time limit when the court announced it, told the jury

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Opening statement is a critical part of a trial. Counsel should use opening statement to give the jury a road map to the evidence they expect to be presented, to tell the story of their case, without being argumentative, and without violating any of the rules that apply to closing argument.

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. Burlington has served as chairman of the FJA Amicus Curiae Committee and is a member of the FJA Board of Directors. Burlington is the recipient of the 2000 S. Victor Tipton Award for achievement in legal writing.

CHRISTOPHER V. CARLYLE

is board certified in appellate practice and practices exclusively in the area of civil appellate litigation as a shareholder with The Carlyle Appellate Law Firm. 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. Carlyle, along with his wife Shannon, received the 2012 S. Victor Tipton Award for superior achievement in legal writing.

BARBARA GREEN

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

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FJAYOUNGLAWYERSSECTION

Keeping Your Personal Injury Case Out of Compelled Arbitration in Premises and Vehicle Cases

by Shane Newlands

Whether in the world of premises liability, construction, vehicle defect or negligent repair, there have always been untold numbers of contracts and other written agreements in the periphery of our personal injury cases. Perhaps coinciding with the rise of tort reform in Florida and nationwide, these previously unseen contracts have increasingly thrust themselves into injury cases in the form of ever-present “Arbitration Agreements.” These agreements, frequently found in inconspicuous places in standard-form contracts for the purchase or repair of a car or home (the back of the form is all-toocommon) and written in small (but as defense lawyers will quickly point out: bold and capitalized) typeface, threaten to deprive our clients of their constitutionally-protected right of access to the courts,1 relegating them to the closed forum of arbitration. Especially in cases with significant damages, defense lawyers are more and more often taking a flier on the low-risk, potentially high-reward motion to compel and hoping that a court will see it their way. And when faced with the ubiquitous defense citation that “any doubts concerning the scope of an arbitration agreement should be resolved in favor of arbitration,”2 combating these motions can seem daunting.

Over the last two decades, though, the Florida Supreme Court has developed and refined an analytical framework that protects unsuspecting claimants from signing away their rights to a trial by jury. Beginning in 1999 with Seifert v. U.S. Home Corp., the Court has developed a three-part test that a party seeking arbitration must satisfy: 58 | November/December 2018 | www.FloridaJusticeAssociation.org

(1) a valid written agreement to arbitrate exists; (2) an arbitrable issue exists; and (3) the right to arbitration was not waived.3 While the waiver issue is highly case-specific and beyond the ambit of this article, the law of arbitrability and validity is relatively consistent whether the plaintiff is a home- or vehicle-buyer, renter, or owner seeking repairs. Understanding the nuances of how arbitration provisions are worded, where they are found, and how they are executed is often the difference in whether or not an action is stayed in court or headed to arbitration.

Arbitrability

Any discussion of arbitrability of personal injury claims starts from two rules: (1) “no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate;”4 and (2) no matter how broad the arbitration clause appears,5 a personal injury claim will not be arbitrable unless, “at a minimum, [it] raise[s] some issue the resolution of which requires reference to or construction of some portion of the contract itself.”6 The former point is important because, like any other contractual construction problem, we must first start with the plain language of the arbitration provision — the “best evidence of the parties’ intent.”7 The latter point is particularly important because the vast majority of arbitration clauses we see outside the contexts of medical malpractice and nursing home cases have nothing to do with

personal injury. Instead, they are found in purchase agreements, repair agreements, and service addendums, and to the extent they non-specifically purport to cover “tort” claims at all, courts have limited those provisions to include only economic torts, not torts based on physical personal injury.8 Seifert and its progeny tell us to start with the words.9 If the words of the agreement specifically make the personal injury claim at issue arbitrable, that is likely the end of the argument as to arbitrability.10 But where these clauses are silent as to the arbitrability of the claim being brought, the caselaw holds that no matter how facially broad the arbitration clause, an issue is not arbitrable unless it bears a “significant relationship” or “contractual nexus” between the claim and the contract.11 What makes a “significant relationship” or “contractual nexus”? The Court gave one answer in Seifert, and then a more specific answer fifteen years later in Jackson v. Shakespeare Foundation, Inc.12 In Seifert, the Court said that a contractual nexus “at a minimum, raise[s] some issue the resolution of which requires reference to or construction of some portion of the contract itself.”13 In other words, the existence of the contract alone is not enough.14 Then, in Jackson, the Court added that a distinction exists based on whether the claim emanates from the contract or is based in a common law duty owed to the public at large: More specifically, a claim has a nexus to a contract and arises from the terms of the contract if it emanates from an inimitable duty created by the parties’ unique contractual relationship. In contrast, a claim does not have a nexus to a contract if it pertains to the breach of a duty otherwise imposed by law or in recognition of public policy, such as a duty under the general common law owed not only to the contracting parties but also to third parties and the public.15 Two final points are particularly useful in arguing arbitrability.

First, to combat that hornbook citation that “doubts concerning the scope of an arbitration agreement should be resolved in favor of arbitration,”16 Seifert reminds us that when the arbitration provision is part of a standard-form, adhesion contract, any ambiguity about whether a personal injury claim is arbitrable must be construed against the drafter, and thus against arbitrability.17 And second, there is an element of constitutional protection provided by Seifert, which specifically notes “public policy” militates against “depriv[ing plaintiff] of her right to a trial by jury, due process and access to the courts.”18 These two policy preferences, taken together, are a useful pragmatic and common-sense underpinning to what is otherwise a technical argument of contractual interpretation.

Validity

Even where an arbitration provision expressly covers a personal injury claim, that factor alone is not enough to seal that claim’s departure from the court system into arbitration. Like any other contract, Florida courts may properly decline to enforce a contract to arbitrate on the ground that it is unconscionable or against

public policy.19 Unconscionability has long been “recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.”20 Or as the U.S. Supreme Court more colorfully described it over a century ago: “‘no man in his senses and not under delusion would make [it] on the one hand, and as no honest and fair man would accept [it] on the other.’”21 While not attempting an in-depth discussion on attacking the validity of arbitration clauses, a couple simple points should be helpful. First, if a court can somehow distinguish Seifert and finds the claim is arbitrable, it can then only decide validity by conducting an evidentiary hearing to “consider the totality of the circumstances” and make findings of fact and conclusions of law.22 A court that does not conduct an evidentiary hearing is in error.

Second, getting a court to determine that an arbitration clause in a contract is unconscionable will require findings of both procedural and substantive unconscionability.23 The former inquiry will focus on the circumstances under which the agreement was executed, where the disparity between the parties’ sophistication and bargaining power is particularly important. As the Florida Supreme Court recently noted: In the typical case of consumer adhesion contracts, where there is virtually no bargaining between the parties, the commercial enterprise or business responsible for drafting the contract is in a position to unilaterally create one-sided terms that are oppressive to the consumer, the party lacking bargaining power.24 The absence of meaningful choice on the part of a consumer is one of the hallmarks of procedural unconscionability.25 And courts have recognized that when an “arbitration provision is hidden in a maze of fine print and minimized by deceptive sales practices,” that too can support a finding of procedural unconscionability.26 On the other hand, substantive unconscionability analyzes how unfair or unreasonable the contract is.27 One indicator of substantive unconscionability is when an agreement requires customers to give up other legal remedies.28 Another is when the agreement is non-mutual — when it divests one party of certain rights while still affording those rights to the other party, especially when the party retaining the rights is the drafter of the agreement.29 While both procedural and substantive unconscionability need to be present to invalidate an arbitration provision, they need not both be present to the same degree. “Essentially a sliding scale is invoked … the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.”30 Evidence of substantive unconscionability can be adduced in several ways. The low-hanging fruit is a plaintiff’s own testimony that he or she was never informed of the arbitration provision at issue. But useful testimony can be gleaned from seller’s agents as well. It is helpful to take the deposition of the seller’s agents www.FloridaJusticeAssociation.org | November/December 2018 | 59

FJAYOUNGLAWYERSSECTION

that your plaintiff interacted with — especially in the context of vehicle or repair contracts. Oftentimes the most powerful evidence will be that even the seller’s agents did not know of the arbitration provision, did not understand it, and could not articulate it in a deposition in a way that a normal person would be able to comprehend.31 Using that evidence — and being creative about uncovering other sources of helpful evidence and testimony — practitioners can put a convincing case to a court in favor of invalidating even an express provision mandating arbitration.

er places where it serves a legitimate and mutual benefit to all parties involved, businesses ought not be able to hedge against their own negligence by forcing their unsuspecting customers into the oftentimes unbalanced playing field of arbitration.

With the use of the precedents and tactics discussed above, we can all take steps to ensure that our clients continue to have their cases decided where they belong — in open court before a jury of their peers.

Conclusion

As arbitration provisions continue to pop up in almost every conceivable place consumers are forced to sign standard-form agreements, it will become increasingly important to have the right tools to defeat them. Luckily, the Florida Supreme Court has supplied those tools. While arbitration will likely continue to proliferate among complex commercial interests and in oth-

Fla. Const. Art. I, § 21.

O’Keefe Architects, Inc. v. CED Const. Partners, Ltd., 944 So.2d 181, 185 (Fla. 2006); Advantage Dental Health Plans Inc. v. Benefical Adm’rs Inc., 683 So.2d 1133, 1134 (Fla. 4th DCA 1996); Ronbeck Const.

Co., Inc. v. Savanna Club Corp., 592 So.2d 344, 346 (Fla. 4th DCA 1992).

3 750 So.2d 633, 638 (Fla. 1999).

4 Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 464 (Fla. 2011); Miller v. Roberts, 682 So.2d 691, 692 (Fla. 5th DCA 1996) (“The general rule is that where an arbitration agreement exists between the parties, arbitration is required only of those controversies or disputes which the parties have agreed to submit to arbitration.”).

5 Courts have separated arbitration clauses into two types: “Narrow” arbitration clauses which cover claims “arising out of” the contract, and thus only implicate “claims having some direct relation to the terms and provisions of the contract;” and “broad” arbitration clauses which cover claims “arising out of or relating to” the contract, and thus potentially implicate related tort claims.

6 Seifert, 750 So.2d at 638.

7 BallenIsles Country Club, Inc. v. Dexter Realty, 24 So.3d 649, 652 (Fla. 4th DCA 2009).

8 See e.g. Kaplan v. Kimball Hill Homes Fla., Inc., 915 So.2d 755, 760 (Fla. 2d DCA 2005) (holding that fraud and fraudulent inducement bear a contractual nexus sufficient to make those claims arbitrable, and that an intentional infliction of emotional distress claim based on the same facts was arbitrable as well).

9 See also Crawford v. Barker, 64 So.3d 1246, 1255 (Fla. 2011) (“Where the terms of a contract are clear and unambiguous, the parties’ intent must be gleaned from the four corners of the document.”)

10 Compare Laizure v. Avante at Leesburg, Inc., 109 So.3d 752, 755–757 (Fla. 2013) (finding that an arbitration clause that includes “common law or statutory negligence, gross negligence, malpractice or a claim based on 1 2

SHANE NEWLANDS

is an associate with Paul Knopf Bigger. He specializes in products liability and catastrophic injury litigation in state and federal court. He is also a member of FJA’s Young Lawyers Board

any departure from the accepted standards of medical or nursing care” encompasses personal injury claims); Rodriguez v. Builders Firstsource—Florida, LLC, 26 So.3d 679, 681 (Fla. 4th DCA 2010) (holding a homebuyer’s claim for personal injury from mold exposure arbitrable where the clause includes claims related to defect of the property, construction of the home, or sales of the home, including “any claims for personal injury or death”) with Kaplan v. Divosta Homes, L.P., 983 So.2d 1208, 1212 (Fla. 2d DCA 2008) (holding a personal injury claim was not arbitrable where personal injury was not mentioned in arbitration clause and clause only sought to arbitrate any “controversy, claim, or dispute arising out of or relating to” the contract or purchase of the home).

11 Jackson, 108 So.3d at 593; Seifert, 750 So.2d at 637–638.

12 108 So.3d 587, 593–594 (Fla. 2013).

13 Seifert, 750 So.2d at 638.

14 Id.; see e.g. Terminix Int’l Co., L.P. v. Michaels, 668 So.2d 1013, 1015 (Fla. 4th DCA 1996) (holding that plaintiffs’ personal injury claims were not subject to arbitration because the claims did not relate to interpretation, performance or breach of any provision of the agreement).

15 Jackson, 108 So.3d at 593 (citing Seifert with approval throughout).

16 Supra, n. 2.

17 Seifert, 750 So.2d at 641 (“The absence of any mention of the parties’ rights in the event of personal injuries or death arising out of any alleged tortious conduct such as that which allegedly occurred in this case creates ambiguity and uncertainty as to the intent of the parties.

Under a well-established rule of construction, we are constrained to construe the provisions of the U.S. Home contract against its drafter, U.S. Home.”)

18 Id. at 642.

19 Steinhardt v. Rudolph, 422 So.2d 884 (Fla. 3d DCA 1982); see also Belcher v. Kier, 558 So.2d 1039 (Fla. 2d DCA 1990).

60 | November/December 2018 | www.FloridaJusticeAssociation.org

Basulto v. Hialeah Auto., 141 So.3d 1145, 1157 (Fla. 2014) (emphasis in original).

21 Belcher, 558 So.2d at 1044 (quoting Hume v. United States, 132 U.S. 406, (1889)).

22 Jonathan M. Frantz, M.D., P.A. v. Shedden, 974 So.2d 1193, 1196 (Fla. 2d DCA 2008) 23 It is important to note that a contract must be both procedurally and substantively unconscionable in order to be unenforceable. Basulto, 141 So.3d at 1160–61.

24 Basulto, 141 So.3d at 1160–61.

25 Powertel, Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999); see also Frantz, 974 So.2d at 1197 (“Thus, when an arbitration provision is “hidden in a maze of fine print and minimized by deceptive sales practices,” the provision may well be procedurally unconscionable); Palm Beach Motor Cars Ltd., Inc. v. Jeffries, 885 So.2d 990, 992 (Fla. 4th DCA 2004) (finding an arbitration clause from a car dealer to be unconscionable where it was only printed in small print on the back of the contract and the seller made no effort to draw it to the customer’s attention).

26 Frantz, 974 So.2d at 1197.

27 Powertel, 743 So.2d at 574; Kohl v. Bay Colony Club Condo., Inc., 398 So.2d 865, 868 (Fla. 4th DCA 1981).

28 Id.; see also Woebse v. Health Care & Ret. Corp. of Am., 977 So.2d 630, 633 (Fla. 2d DCA 2008); Romano v.

Manor Care, Inc., 861 So.2d 59 (Fla. 4th DCA 2003); Bellsouth Mobility, LLC v. Christopher, 819 So.2d 171, 173 (Fla. 4th DCA 2002).

29 Palm Beach Motor Cars Ltd. Inc. v. Jeffries, 885 So.2d 990, 992–993 (Fla. 4th DCA 2004) (finding substantive unconscionability when the purchaser was bound to arbitrate all disputes but the seller was not); see also Christopher, 819 So.2d at 173.

30 Basulto, 141 So.3d at 1159.

31 See e.g. Basulto, 141 So.3d at 1157.

20

MEMBEROUTREACH

Future Civil Justice Advocates’ Talent Shines at Hon. E. Earle Zehmer Memorial Mock Trial Competition It’s a competition where the state’s up-and-coming civil justice advocates match their fledgling legal minds, talents, and skills with the sitting circuit judges deciding which team advances and which one goes home.

The annual FJA Research and Education Foundation E. Earle Zehmer Memorial Mock Trial Competition hosted by the FJA Young Lawyers’ Section brought together 14 teams from seven law schools for the 2018 competition held in the state-of-the-art courtrooms of Fort Lauderdale’s 17th Judicial Circuit Judicial Complex.

The contest provided students with a realistic trial experience. The competitors engaged in pre-trial matters and presented opening statements, the plaintiff’s case, the defense case, and closing arguments including a rebuttal.

Competition on Saturday featured intense contests. Five teams were undefeated following the preliminary rounds: two teams from FIU Law; two teams from Nova Law; and one of the teams from Barry Law. In a close match, one of the FIU Law teams was edged out on a tie-breaker.

The semi-finals matched FIU Law v. Nova Law and Nova Law v. Barry Law for an opportunity to advance to the finals.

Deborah Carpenter-Toye, Judge Thomas J. Coleman, Judge Sherri L. Collins, Judge Luis Delgado, Judge Yael Gamm, Judge Andrea Ruth Gunderson, Senior Judge Joel Lazarus, Judge Michael I. Rothschild, Judge Michael A. Usan, and Judge Daliah H. Weiss.

“We are grateful to Chief Judge Jack Tuter for opening his beautiful courthouse to us and thank all of the judges and lawyers who generously gave their time to participate and provide invaluable feedback to the students,” Murray added.

The FJA Research and Education Foundation is a Florida not-for-profit corporation and a 501(c)(3) charitable organization which was established in 1992. The mission of the Florida Justice Association Research and Education Foundation is to conduct nonpartisan independent research on a variety of consumer issues, as well as provide educational and charitable projects to promote the study and understanding of the civil justice system.

To learn more about the Florida Justice Association Research and Education Foundation and the Hon. E. Earle Zehmer Memorial Mock Trial competition visit: www.fjaresearchand education.org.

The Championship Round of the competition pitted Nova Law v. Barry Law with Eleventh Judicial Circuit Judge Gordon Murray I, presiding.

Both teams brought their “A game” to the round, with Barry Law winning its first FJA Mock Trial Championship.

“We are extremely proud of the student advocates who compete in this competition. Their natural skills at advocacy will ensure that all who have causes to plea will be heard,” said G.C. Murray II. Nearly 100 volunteer lawyers, including members of the FJA Young Lawyers’ Section Board of Directors, pitched in to help the competition run smoothly.

The winning team from Barry Law gather with Judge Gordon Murray I (Center), G.C. Murray II (far right), Chris Keller (far left), and Kim Wald (Second to the right).

Sitting judges from the tri-county area presided over the mock trial competition including General Magistrate Alvan Balent, Jr., Judge

The Final Round Best Advocate from Nova Law chosen by Judge Gordon Murray I.

Two teams take a picture with Broward County Court Judge Gunderson.

62 | November/December 2018 | www.FloridaJusticeAssociation.org

Bruce Braxton of Fast Funds presents Grace Samarkos (right) with her Best Advocate Award and check.

JACKSONVILLE

PENSACOLA

HAPPY HOUR!

The members-only events were hip and unique, and provided the perfect backdrop to talk shop and connect with fellow FJA members.

This fall, we had an incredible turnout to all three statewide Member Happy Hour events. The events provided valuable time and opportunity to network with local colleagues, while allowing the forum for members to ask FJA Leadership about the latest updates on legislative and political issues that could impact their practice and the state of Florida.

Thank you to everyone who joined in the nights of fun, food and drinks (and Jacksonville video games)! Special thanks also to FJA Leadership, the Membership Team, and the Marketing Team for their hard work coordinating and attending the events.

We’d also like to thank the sponsors who help make these events possible: BEC Consulting BiFulco Medical Group Client Legal Funding Millennium Settlement Consulting Milestone Reporting Company Oasis Financial Panhandle Orthopaedics Universal Court Reporting Video Law Services Check out the Happy Hour Photo Album!

www.FloridaJusticeAssociation.org | November/December 2018 | 63

Witnex 3131-12

THE FLORIDA JUSTICE ASSOCIATION RESEARCH AND EDUCATION FOUNDATION ® SUPPORTING HURRICANE MICHAEL VICTIMS • AIDING RECOVERY • REBUILDING COMMUNITIES

State Sen. Gary Farmer, former FJA president; Matt Foster, FJA EAGLE member and FJA staff.

FJA Board Member Steve Cain delivers supplies to hurricane victims.

The storm has passed. Rebuilding is underway. People need help.

In the aftermath of devastating storms, through the FJA Research and Education Foundation (FJA-REF), Florida’s civil justice advocates work to provide a helping hand to people in need. To assist in the recovery and rebuilding efforts following Hurricane Michael, FJA-REF has provided storm victims with badly needed supplies.

Be a part of FJA-REF’s historic work to help people in need, aid the recovery, and promote rebuilding in the hard-hit Florida Panhandle.

CONTRIBUTE TODAY: http://bit.ly/FJAREFcares LEARN MORE: FJAResearchandEducation.org

FJA-REF is powered by generous gifts (major and planned) from individuals and the legal community through cy pres class-action awards. FJA-REF brings together Florida’s civil justice advocates to: • Engage citizens, organizations, and communities in its mission spur civil justice awareness.

• Educate Floridians about the key role constitutional civil justice accountability rights play in promoting corporate responsibility, safer consumer products, and cleaner air and water.

• Examine critical public policy issues relevant to defending Floridians’ constitutional civil justice rights.

• Enhance and strengthen the stature of the civil justice profession through communications, events and education.

® EMAIL: FJA@floridajusticeassociation.org www.FloridaJusticeAssociation.org | November/December 2018 | 65 FLORIDA JUSTICE ASSOCIATION SITE: FJAResearchandEducation.org CALL: 850.224.9403 RESEARCH AND EDUCATION FOUNDATION®

EAGLESPOTLIGHT

THANK YOU, EAGLES In recognition for unwavering commitment to the EAGLE program, we recognize the following upgraded, new or returning EAGLE members.

PATRON – $5,000

SPONSOR – $3,000

Sheba R. Abraham Recruited by Scot D. Goldberg Matthew T. Christ Recruited by Gregory M. Yaffa James J. Kelleher Recruited by Leslie Mitchell Kroeger Michael M. Noone Recruited by Scot D. Goldberg

David M. Dunlap Recruited by Curry G. Pajcic

Richard B. Troutman Upgraded

Dewayne Terry Recruited by Robert Mayer Rubenstein

ASSOCIATE – $1,500

SOARING YEAR 1 – $750

Amy Borgersen Recruited by Leslie Mitchell Kroeger

Drew Gordy Bruner

Eric T. Halsey Recruited by Gregory M. Yaffa Katherine A. Kiziah Recruited by Brenda S. Fulmer Alana Rae Weatherstone Recruited by Leslie Mitchell Kroeger

66 | November/December 2018 | www.FloridaJusticeAssociation.org

BUSINESS LEGACY $40,000

BUSINESS BENEFACTOR $10,000

Accelerate Now Law Firm Marketing Recruited by Betsey T. Herd

Priority Pre Settlement Funding, LLC Recruited by Brett K. Findler

BUSINESS SPONSOR $3,000

Forensic Video Law Recruited by James R. Holland, II

2018-2019 EAGLE RECRUITING CHAMPIONS Since May 1, 2018 Recruiter Name

Recruiting Value

# of Recruits

Recruiter Name

Recruiting Value

# of Recruits

Lake H. Lytal, III

$75,625

3

Ricardo M. Martinez Cid

$4,500

3

Betsey T. Herd

$40,000

1

Matt D. Powell

$4,500

3

Leslie Mitchell Kroeger

$13,500

7

Gregory M. Yaffa

$4,500

2

Brett K. Findler

$10,000

1

Thomas W. Carey

$3,000

1

Robert Mayer Rubenstein

$10,000

2

James R. Holland, II

$3,000

1

Anthony Joseph Soto

$10,000

2

Paul D. Jess

$3,000

1

Tiffany M. Faddis

$8,000

2

Matthew E. Kaplan

$3,000

2

Bruce L. Scheiner

$7,500

5

Steven C. Ruth

$3,000

3

Richard E. Chait

$6,750

5

Michael J. Winer

$2,250

2

Scot D. Goldberg

$6,000

2

Brenda S. Fulmer

$1,500

1

Janette Carey

$5,000

1

James W. Guarnieri, Jr.

$1,500

1

Julie Braman Kane

$5,000

1

Christopher P. Janes

$1,500

1

Curry G. Pajcic

$5,000

1

Todd Jordan Michaels

$1,500

1

Eric Romano

$5,000

1

Waylon Thompson

$1,500

1

Eric Tinstman

$5,000

1

as of 11/1/18

www.FloridaJusticeAssociation.org | November/December 2018 | 67

Index

Index To come

68 | November/December 2018 | www.FloridaJusticeAssociation.org

Index To come

www.FloridaJusticeAssociation.org | November/December 2018 | 69

Event Sponsors The FJA CLE Department would like to thank our sponsors and partners for their confidence in our Mission and Live Seminars.

Our vision for the FJA Masters of Justice Seminar would not have become reality without the huge commitment and active contribution from our sponsors and partners. Due to their support we were able to offer a dynamic diversity and inclusion reception in conjunction with premier live CLE event.

FOUNDERS AWARD LUNCHEON

Founders Awards Luncheon, Exclusive Sponsor

SEMINAR SPONSORS

Technology Seminar Sponsor, Video Recording

Auto Negligence Seminar Sponsor; Board of Directors Breakfast Exclusive Sponsor

Insurance & Bad Faith Seminar Sponsor Medical Malpractice Seminar Sponsor

BREAK SPONSORS BiFULCO MEDICAL GROUP

Life Care Plans • Trauma Consultations

Thursday Morning Break Sponsor; Course Book Sponsor

Wednesday Afternoon Break Sponsor; Pens

Wednesday Morning Break; Diversity Reception

OTHER SPONSORS

Brochure Sponsor

Diversity Reception Sponsor; Lanyard Sponsor; Tote Bag Sponsor

Wifi Sponsor

Attendee Program

Postcard Sponsor

70 | November/December 2018 | www.FloridaJusticeAssociation.org

USB Sponsor

Sign & Technology Sponsor, Diversity Reception Sponsor

Advertisers Index ADR SERVICES Upchurch, Watson, White & Max......................................inside back cover ATTORNEY ADVERTISING Brannock & Humphries, P.A..................................................................... 23 Cohen Milstein......................................................................................... 41 Coker, Schickel, Sorenson, Posgay & Iracki, P.A.......................................... 3 Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A ................. 73 Morgan & Morgan...................................................................................... 4 Osborne & Francis, PLLC........................................................................ 74 Steve Watrel.............................................................................................. 61 The Truck Accident Law Firm................................................................... 45 BANKING Esquire Bank............................................................................................... 9 CONSULTING AND PROFESSIONAL SERVICES The Centers............................................................................................... 72 Secure Direction Consulting, LLC............................................................ 73 COURT REPORTING SERVICES Universal Court Reporting................................................. inside front cover

72 | November/December 2018 | www.FloridaJusticeAssociation.org

EXPERT WITNESSES Physician Life Care Planning..................................................................... 56 The TASA Group...................................................................................... 71 Witnex...................................................................................................... 64 FUNDING Black Diamond Funding........................................................................... 11 Client Legal Funding................................................................................ 35 Fast Funds, Inc.......................................................................................... 33 Priority Pre-Settlement Funding................................................................ 74 MARKETING Accelerate Now.................................................................. inside front cover Chriss David & Associates......................................................................... 27 SETTLEMENT SERVICES NFP Structured Settlements........................................................................ 7 SOFTWARE CASEpeer Legal Software.......................................................................... 15 Exhibit View Solutions LLC...................................................................... 73

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www.FloridaJusticeAssociation.org | November/December 2018 | 73

Priority 3131-10

We are proud to announce our new firm

OSBORNE

& Francis L AW F I R M PL L C

South Florida Office Mizner Park Office Plaza North 433 Plaza Real Blvd Ste. 271 Boca Raton, FL 33432 USA (561) 293-2600

Gregorio Francis

Joseph Osborne

Medical Device & Pharmaceutical Litigation, Products Liability, Medical Malpractice & Personal Injury 74 | November/December 2018 | www.FloridaJusticeAssociation.org

Orlando Office 805 S. Kirkman Road, Suite 205 Orlando, FL 32811 USA (407) 655-3333

realtoughlawyers.com

Our new place.

Our Volusia County office has been remodeled and refreshed to better serve attorneys and their clients during mediation. Like our recent expansion and remodeling in Palm Beach County and improvements in Orange County, it’s part of a continual effort to make sure all eight offices have the welcome mat out for you.

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

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218 South Monroe Street Tallahassee, Florida 32301 (850) 224-9403 November/December 2018 Change Service Requested

TLEL

TM

A POWERFUL WAY TO CONNECT The Trial Lawyers Email List (TLELTM) provides access to the ideas, experience and wisdom of hundreds of fellow civil justice attorneys including some of the FJATM’s most experienced practitioners and appellate litigators.

For more information on TLELTM and how to apply for participation, go to floridajusticeassociation.org or call (850) 521-1093.