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 constitutionality 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

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 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

1 §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 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). 23 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.

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.

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

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 Involv-

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 equities.” 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.