FJA Journal - MAY_JUNE 2016

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JOURNAL FLORIDA JUSTICE ASSOCIATION

Florida Justice Association • May/June® 2016 • #590

FLORIDA JUSTICE ASSOCIATION

JIMMY GUSTAFSON 2016-17 FJA PRESIDENT

®


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MAY-JUNE 2016 - NO. 590 2014 March March 2014

CONTENTS HIGHLIGHTS

On the Cover:

Meet FJA’s 2016-17 President Jimmy Gustafson

Supreme Court throws out draconian statutory caps on attorney’s fees in worker’s compensation cases

Daubert is leading to some seriously confused “Muddy Waters”

pg 6

pg 36

pg 42

22

Supreme Court holds that opposing counsel’s bills are relevant and discoverable where reasonableness of claimed fee is contested

26

Filters and fractures: the ongoing saga of IVC filters

34

The link between talcum powder and ovarian cancer

48

Second DCA’s recent decision that an attorney’s pre-complaint statement bound his client as to the statute of limitations is wrong on many counts

52

The courts may be approaching “zero tolerance” when it comes to closing argument attacks on opposing counsel

60

A look back at a busy year for the FJA Young Lawyers Section

IN THIS ISSUE 4 FJA Events Calendar 5 President’s Message – Jimmy Gustafson 6 Special Focus: FJA’s 2016-2017 President Jimmy Gustafson 12 Cases and Commentaries – Kenneth D. Kranz 14 Legislative Notes 18 Tips for Auto Practitioners – Dale Swope 22 Insurance — Richard Benrubi 26 Mass Torts – Ben Martin & Matt Schultz 30 Medical Malpractice – Scott McMillen and Allison McMillen 34 Products Liability – Adam J. Langino & Theodore J. Leopold 36 Worker’s Compensation – Michael J. Winer 42 Evidence – Matt Schultz 48 Civil Procedure – Roy D. Wasson 52 Closing Argument – Philip Burlington, Barbara Green and Chris Carlyle 56 Diversity Committee – Rodney Gregory 60 Young Lawyers Section – Vanessa Lee Brice 64 EAGLE Spotlight 68 Index

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JULY- 2016

2016-2017 FJA OFFICERS, EXECUTIVE COMMITTEE AND BOARD OF DIRECTORS PRESIDENT James W. Gustafson, Jr.

EXECUTIVE DIRECTOR Debra Henley

PRESIDENT-ELECT Dale M. Swope

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

TREASURER Lake H. (Trey) Lytal, III SECRETARY Leslie Mitchell Kroeger

Experts Webinar #7: Grief Expert

AUGUST - 2016 AUGUST 4-6

Al J. Cone Trial Advocacy Institute, Gaylord Palms Orlando

AUGUST 19

DIRECTORS 2014-2016 Vanessa Brice Laurie Briggs David C. Dismuke Elizabeth Finizio Steven Jaffe James L. Magazine Daniel A. Mowrey H. L. Larry Perry Matthew N. Posgay Daniel Vazquez Steve Watrel Jason Whittemore

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

FJA CALENDAR

IMMEDIATE PAST PRESIDENT Todd E. Copeland

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

JULY 15

Experts Webinar #8: Economist Expert

SEPTEMBER-2016

LOCAL TLA REPRESENTATIVES Shannon Del Prado James W. Guarnieri Scott L. Henratty Daniel A. Iracki Gloria Seidule William D. Umansky Bernard F. Walsh

SEPTEMBER 16: Experts Webinar #9: Deposing and Cross Examining the Defense “Causation” Expert

AAJ OFFICER Julie Braman Kane

FJA Board of Directors Meeting, Loews Portofino Bay Hotel at Universal Orlando

AAJ BOARD OF GOVERNORS Sean C. Domnick Brenda Fulmer Rodney G. Gregory James R. Holland Nicholas C. Johnson Ricardo Martinez-Cid Herman J. Russomanno Andrew Weinstein Jean Marie Whalen Edward H. Zebersky AAJ STATE DELEGATES Troy Rafferty Clancey Bounds Daryl D. Parks

WOMEN’S CAUCUS Fay O. Pappas Mallory R. Widgren

SEPTEMBER 28-30

Masters of Justice, Loews Portofino Bay Hotel at Universal Orlando

SEPTEMBER 30

OCTOBER-2016 OCTOBER 21: Experts Webinar #10: Katzman OCTOBER - COMING SOON P.I. Bootcamp Webinar Series II

NOVEMBER-2016 NOVEMBER 16: Slip and Fall Webinar NOVEMBER 18: Experts Webinar #11: Life Care Planner and Vocational Expert

JOURNAL STAFF

DECEMBER-2016

EDITOR-IN-CHIEF Kenneth D. Kranz

DECEMBER 16: Experts Webinar #12: Human Factors Expert

JOURNAL COORDINATOR Jan Brown

MARKETING COORDINATOR Kalon Hopkins

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PRESIDENT’SMESSAGE

GET READY FOR A BIG, OPTIMISTIC YEAR! by FJA President Jimmy Gustafson

A

s predicted for some time now, 2016 is shaping up to be a big, optimistic year for the Florida Justice Association. The 2016 legislative elections are likely the biggest in many years, in terms of the number of seats up for election, the number of Florida Justice Association members running, the number of Florida Justice Association friends running, and the implications for our Florida Justice Association for years to come. First, every seat in the Legislature – all 40 Senate seats, and all 120 House seats – are up for election. With the newly drawn districts, there are more hotly contested seats up for election this year than at any time in our organization’s history. The sheer number of our friends who face re-election battles is unprecedented, and it requires the full force of our commitment to ensure the best results possible. Our staff and leaders are busy securing the resources from our members to make the power of the Florida Justice Association felt across the state this election cycle. Our commitment is the biggest we’ve ever made, with the benefits of commitment commensurate with our investment. Simply put, our commitment matches our expectations, and those are sky high. Second, we have more Florida Justice Association members running for legislative office this year than we have ever had in any single election. One of the most challenging aspects of past legislative session battles

was a Legislature full of members who did not understand or value a civil justice system that was fair to the average citizen. Injured people are always going to be the minority. No matter what party controls the legislature, we, the Florida Justice Association, will always represent the minority. In order for the average citizen, the injured person, the widowed spouse, the maimed child, to have a civil justice system that values and protects their right to meaningful justice, we must have legislators who understand just how important that right is. Having Florida Justice Association members in the Legislature ensures that we have legislative champions to preserve a fair civil justice system, rather than a legislative body that capitulates to the moneyed interests who seek to impose a civil justice system that is neither fair nor just. Finally, the 2017 legislative session holds hope for success that the Florida Justice Association has not experienced before. This upcoming session is the most hopeful and optimistic one for the Florida Justice Association in many years. Maybe ever. The leaders of both chambers of the Legislature understand the importance of a civil justice system that is fair and just for the average citizen. We expect to have more members of the Legislature who understand the importance of the civil justice system than we have ever had before. We expect that many of those Legislators will be members of our own Florida Justice Association, and will play leadership roles in their respective chambers. The hard work and planning of past Florida Justice Association leaders, and the execution by the most talented staff we’ve ever had, is bearing fruit, right now. Sacrifice leads to great rewards. Join us. Help us see the commitment through.

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SPECIALFOCUS:NEWFJAPRESIDENTJIMMYGUSTAFSON

ON THE SHOULDERS

OF GIANTS: FJA’S NEW PRESIDENT, JIMMY GUSTAFSON, JR. BY DON FREEMAN

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hether watching and learning from them, following in their footsteps, or standing up to them in the courtroom, James W. “Jimmy” Gustafson Jr., the Florida Justice Association’s 57th and newest president, has spent much of his life in the shadow of giants. A long-time shareholder at the powerhouse firm of Searcy Denney Scarola Barnhart & Shipley, this modest, warm, down-toearth, native Floridian will be the first to tell you that the formula for his success lies in what he learned from those who came before him. Jimmy was raised in the town of Jupiter, just north of West Palm Beach. As much a “picture-postcard” of the Florida experience as any place you will find, the area surrounding Jupiter Inlet presents a nearly perfect cross-section of the state’s culture. Drive a little south and east toward the ocean and you will find yourself passing tiny clothing boutiques, jewelry shops, and glittering, multi-million dollar, celebrity-owned estates on the way to sparkling, pristine beaches and some of the best ocean fishing and diving in the world. It is a place where miles of manicured fairways and greens are interrupted only by the occasional red dirt diamond, where Major League ballplayers train in the spring, though this wasn’t always the case. “When Jimmy was little, back in the sixties and seventies,” his mother Barbara, a former school teacher, recalls “Jupiter seemed almost like a small fishing village. Nothing like it is today: just coastline and water and strawberry fields. A great place to raise kids.” It was here in 1966 t h a t Ji m m y w a s born and took his first steps under the watchful and protective eyes of his older brothers: Lance, Mike and John, who were an influential force in Jimmy’s 6 | May/June 2016 | www.FloridaJusticeAssociation.org

early life. Jimmy’s dad, James Sr. (Jim) was a quiet and reserved man, a self-employed title examiner who ran his own office and employed a staff of dozens, which in those days meant the Gustafson family rode the often turbulent ups and downs of the South Florida real estate market. When the market was up and people were buying property, Jim employed a staff of up to thirty, mostly single-moms looking for flexible hours and a steady paycheck. When the market was down, Jimmy’s father faced the tough choice of having to let people go and was frequently absent, putting in long hours at the office to keep the family business afloat. As a teacher mainly of kindergarten and the first few grades, Barbara Gustafson’s professional life also required long hours of lesson planning and course review. It was from watching his parents as a child that Jimmy learned his first lessons about the importance of being committed to one’s work and of trying to make a difference in other peoples’ lives. As a child, and then a teenager, he would frequently stop by his dad’s office to visit, or drop into his mom’s classroom to watch her read to her students, experiences he credits with leaving a lasting impression on the accomplished, hard-driving litigator he is today. “We both worked a lot,” recalls Barbara; “as a teacher I worked probably 60 hours a week and Jim worked just as much. He was considered the best title examiner in Palm Beach County, so he stayed busy. He was a hard worker and dedicated to his business and his employees,” a point that would be driven home to Jimmy in unforgettable fashion decades later, when a group of those ladies who worked for his dad, now much older, took him aside at Jim Sr.’s wake to express their gratitude for the extraordinary lengths to which he went to make sure they were set up with good job opportunities when business necessitated their being let go. Barbara recalls that Jimmy was “an easy-going child, who made friends easily,” and was a good student – at least in the beginning. “I wasn’t exactly a standout student in high s c h o o l , ” Jimmy admits; however, his voracious reading made him a standout in English, and he learned much about the world from the rich outdoor experiences a youngster growing up in Jupiter during the lateseventies and early-eighties


inevitably had. When not reading or (not) studying, he spent his time fishing, surfing and playing baseball, a sport he stuck with through high school, though he hardly considers himself a standout in that given the bumper crop of local talent the area produced. In short, he was a native Floridian through-and-through, taking full advantage of the fantastic lifestyle Palm Beach County had to offer a smart, active young man. When high school graduation rolled around, Jimmy, like so many before him, was just mature enough to recognize that he was too immature to start college and make a good show of it, electing instead to join the military. Specifically, in 1984, he joined the Army. Having learned so much from his parents as a young man about the importance of hard work, he was about to learn a great deal about leadership from one of the best in the business. After finishing basic training and technical school, Private Jimmy Gustafson was assigned as a Radio Telephone Operator (RTO) to the First Brigade of the legendary 82nd Airborne, then commanded by Colonel – and later four-star general and Chairman of the Joint Chiefs of Staff – Hugh Shelton. “Unfortunately, he was pretty tall and a fast walker and a RTO’s rucksack is pretty heavy, so keeping up with him was challenging.” Jimmy laughingly recalls. More importantly, he notes, “I was fortunate to get assigned to General Shelton; he was what you would call a Super Leader.” Jimmy recalls that General Shelton always showed a genuine interest in his men, talking to Jimmy at length about his family and the South Florida area. “Before I was in high school you could sometimes pick up propaganda broadcasts coming from Fidel Castro’s government in Cuba, on the AM radio,” Jimmy recalls, “He wanted to hear all about that.” “I learned a lot about how to treat people” from watching Shelton, Jimmy recounts, “he never asked anyone to do anything he wouldn’t do himself, and high expectations were the standard. We would have done anything for him.” Jimmy reflects fondly on occasions when he would arrive back in Jupiter on leave from the military: “I would come home and sneak into the back of my mom’s class and watch her read books to her kids. That’s how I would tell her I was home.” And of course, the kids seeing a soldier in uniform were always thrilled. “I loved that,” Jimmy’s mom recounts, “whether they were my own or in my class, I always encouraged my kids to read a lot. It meant a lot to the both of us.” After the military, Jimmy, the former “C-student” in high school, buckled down and got serious, moving to Tallahassee and attending Florida State University,

where he graduated Phi Beta Kappa with a B.A. in English (cum laude). After that he followed in his older brother Lance’s footsteps by starting law school, where he again graduated with honors and distinguished himself by studying abroad, at Oxford, and competing on the Moot Court Team. Never one to take the easier of two paths, Jimmy’s first job out of law school was in medical malpractice defense, with a firm in Tampa. As an associate, he had the opportunity to learn the defense side of these often very difficult, sad cases by watching a group of partners known for their excellence and professionalism. He took to heart what he saw and modeled his own defense practice on the ethical example he was shown, having at the same time the good fortune to sit across the www.FloridaJusticeAssociation.org | May/June 2016 | 7


SPECIALFOCUS:NEWFJAPRESIDENTJIMMYGUSTAFSON

table from some of the best plaintiff’s lawyers in the state, where he watched and learned and took notes. It was while defending a medical malpractice case that Jimmy experienced a moment of clarity that he would come to regard as a turning point in his life. The year was 1997, when he was just a few years out of law school, taking the deposition of a man dying from cancer. “It was a tough situation,” Jimmy recalls. “I knew he was dying, he knew he was dying, and he knew that I knew he was dying… He had a real decency about him and it was difficult to interrogate him under those circumstances.” Yet when the deposition was over, this sick, tired gentleman approached Jimmy and told him, “You were very kind to me. Thank you.” Although it was not the first difficult deposition Jimmy had taken, this time the gravity of the situation and the measure of a dying man’s gratitude for things as fundamental as kindness and respect moved Jimmy in a way he had never been moved before. As he puts it, “I went home that night and just knew that I couldn’t be a defense lawyer anymore. I had to switch sides.” It wasn’t long before this realization turned into a reality. Just a few months later, Tom Masterson, the lawyer representing the cancerstricken gentleman whose thanks had so moved him, called Jimmy out of the blue and offered him a position with his firm doing plaintiff’s work. Jimmy said yes and in so doing made a crucial turn in his professional life. Tom Masterson was a partner in a well-respected plaintiff’s firm which was then called Masterson, Rogers & Masterson. Tom was the second Masterson on the letterhead. The first was his recently departed father, Barney, who it just so happened had been a legend in plaintiff’s personal injury law (FJA’s annual award for professionalism is named for Barney, “B.J.” Masterson, a past president of the organization, as is the St. Petersburg/Clearwater chapter of the American Inns of Court). On his first day of work, Jimmy took his seat at Barney’s recently vacated desk, 8 | May/June 2016 | www.FloridaJusticeAssociation.org

in Barney’s recently vacated office, where Barney’s suit-coat still hung from a hook on the door, all a potent reminder of the extraordinarily giant shadow in which Jimmy was walking. Isaac Newton is credited with saying “If I have seen further [than those who came before me], it is by standing on the shoulders of giants.” Up to this point in his life, this is what Jimmy had had the good fortune to do. He had watched his dad struggle for years to keep a small business afloat but still always manage to do right by the people who worked for him; he had learned from General Shelton’s example the importance of leading from the front and taking a genuine, caring interest in those around him; and he had watched the partners at the defense firm where he worked do a tough job honorably. Though he himself had put in a lot of hard work to get where he was, he had gotten to this point through the good fortune of being exposed to extraordinary people, and now he was expected not just to shoulder the tremendous responsibility that comes with being a plaintiff’s lawyer, but to do it from the office of Barney Masterson, a true giant in the field. And if that weren’t enough to keep him motivated, the young litigator’s world was about to be forever changed by a beautiful, dark haired young lady named Josie. One day in 1998, in a Hyatt in Tampa, fortune once again smiled on Jimmy Gustafson. He was there to meet his cousin, who was in town from Lubbock, Texas on business for Sams’ Club. Also in town, from the company’s headquarters in Bentonville, Arkansas, was a young lady named Josie Ware, who happened to know Jimmy’s cousin professionally. The three met up and spent the whole night talking and laughing as if all they were all old friends. A spark was lit that night between Jimmy and Josie that later turned into as much of a conflagration as the vast distance between Bentonville and Tampa allowed. Being young and impetuous and in love, a move to Tampa by Josie quickly followed, as did marriage, and then, a few years later, a new light in both of their lives: a son they named Winton.


As much as Jimmy loved working at the Masterson firm, shortly after Winton’s birth, an opportunity presented itself to realize all at once a number of dreams he had harbored for years: practicing law with his older brother Lance, back in Tallahassee, with a firm called Searcy Denney Scarola Barnhart & Shipley. To Jimmy, “working with Searcy Denney is like playing for the ‘27 Yankees,” a reference to “Murderer’s Row,” the World-Series winning line-up that included Babe Ruth, Lou Gehrig, Tony Lazzeri and Earle Combs. “When someone like a Chris Searcy or a Greg Barnhart is willing to share their wisdom and experience, you’re a fool not listen and learn.” “At Searcy Denney,” Jimmy notes, “I got to learn more than I ever thought I could about playing in the Big Leagues [of plaintiff’s personal injury law] through watching the best in the business.” He took in as much as he could over the years, learning from his mentors and patiently paying his dues in the courtroom. After moving back to Tallahassee, Jimmy’s wife Josie went back to school at Florida State, where she earned a Masters in speech-language pathology and developed an active clinical practice helping children and accident victims with traumatic brain injuries improve their speech. In 2011, Jimmy reached another major turning point in his career when he was offered leadership of the team Searcy Denney had put together to try its substantial book of Engle-progeny, tobacco-related wrongful death suits. “These are very difficult cases to try,” notes Searcy Denney shareholder and past FJA President Greg Barnhart, “they involve thousands and thousands of pages of documents going back decades, the defense attorneys are top notch and they never settle.” Once again Jimmy found himself in the shadow of giants, but this time they had names like R.J. Reynolds and Phillip Morris, and he wasn’t just standing on their shoulders or following in their footsteps, he was facing them toe-to-toe in court, with millions of dollars at stake. “Engle progeny cases are not so much about the lawyers trying them as they are about the awful things the tobacco companies did to a whole generation of Americans,” Jimmy notes. “They fight tooth and nail, but the defense is a transparent kind of ruse. Good people recognize that for what it is, and as a lawyer you just have to get out of the way of the evidence and let the jurors do their thing,” a formula which has led Searcy Denney to stellar results in Engle progeny trials over the last eight years. “Leadership of our Engle team was a big responsibility for Jimmy to take on,” observes Barnhart, “but he’s tough, aggressive and organized, so we knew he could do it. And the results have been fantastic.” These days Josie has added to her clinical practice the title of adjunct professor at FSU, ready to teach what she has learned about speech-

language pathology to a new generation of practitioners, and Jimmy is doing his best to juggle and balance the tremendous responsibility that goes with trying complex Engle progeny and personal injury cases with both his commitment to furthering the cause of justice for all Floridians through his work with the FJA and what he considers his greatest priority: his family. When not in the courtroom or courting legislators at the Capitol in Tallahassee, Jimmy spends time with them at their beach house and enjoys fishing and hunting with Winton, now 15, himself a talented student and athlete who runs cross country and plays lacrosse at the Maclay School in Tallahassee. “Jimmy’s family means everything to him,” notes his mom, Barbara. “We have a routine,” adds Josie, “if he wins a big trial I put him to work around the house, folding laundry or doing chores, so he gets back into Dadmode and doesn’t get a big head;” and in the event a trial doesn’t go Jimmy’s way: “he gets three days of hunting or fishing, or whatever, to get his mind off of it and pick himself up, then it’s back to work.” Like his success as a soft-spoken, modest, “giant slayer” in the courtroom, Jimmy’s election as the next President of the FJA is a natural evolution brought about by years of hard work and dedication. Over the last sixteen years he has been an active and constant supporter and promoter of FJA, a fixture in leadership meetings and at the Capitol during Legislative sessions, a frequent lecturer at FJA’s continuing education courses and a tireless fundraiser. He has been an EAGLE member since 2000 and an EAGLE founder since 2015, has sat on the Board of Directors and Executive Committee since 2011, has served faithfully in the offices of Secretary and Treasurer, and has been the recipient of several distinguished service awards, including the Jon E. Krupnick award for outstanding and steadfast perseverance in the pursuit of justice on behalf of the weak or injured. “Those of us in the chairs of the Florida Justice Association are fortunate to be here at this time,” Jimmy notes. “Our organization is reaping the rewards of the hard work and vision of prior leaders, and the ceaseless work of a tremendously talented staff that is second to none.” As a result, Jimmy says, “the Florida Justice Association is poised to accomplish meaningful goals that will benefit Florida’s citizens for years to come.” Don Freeman

is a Legislative Analyst with the Florida Justice Association. Before joining FJA, he practiced in Tallahassee in the areas of criminal defense and plaintiff’s medical malpractice, wrongful death and civil rights. He graduated with honors in 2003 from the Florida State University College of Law where he was on the Law Review and Moot Court Team and won multiple writing awards.

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www.FloridaJusticeAssociation.org | May/June 2016 | 11


CASES&COMMENTARIES

In Brief

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

I

n a long-awaited decision, the Florida Supreme Court held that §440.34, Fla. Stat., which mandates a conclusive fee schedule for awarding attorney’s fees to a successful claimant in a workers’ compensation case, is an unconstitutional denial of due process under the Florida and United States Constitutions. Castellanos v. Next Door Co., So.3d , 41 FLW S197 (Fla. 4-282016). In this case the statutory fee schedule mandated an attorney’s fee award to a claimant that amounted to $1.53 per hour for his attorney’s 107.2 hours of work in successful pursuit of his client’s claim. The Court noted that “[t]he right of an injured worker to recover a reasonable prevailing party attorney’s fee has been a key feature of the state’s workers’ compensation law since 1941,” and the 2009 iteration of the statute eliminated the previous requirement that a reasonable fee be awarded to a successful claimant. “Considering that the right of a claimant to obtain a reasonable attorney’s fee has been a critical feature of the workers’ compensation law, we conclude that the mandatory fee schedule in section 440.34, which creates an irrebuttable presumption that precludes any consideration of whether the fee award is reasonable to compensate the attorney, is unconstitutional under both [Article I, §9, Fla. Const., and Amendment XIV, §1, U.S. Const.].” Several FJA members were involved in the case, and the FJA, represented by Richard W. Ervin, III and Susan Whaley Fox, participated as amicus. In addition to Castellanos, the Supreme Court also ruled on pending similar challenges to the §440.34 fee schedule in: Richardson v. Aramark/Sedgwick CMS, So.3d , 41 FLW S207 (Fla. 4-28-2016); Pfeffer v. Labor Ready Southeast, Inc., So.3d , 41 FLW S208a (Fla. 4-28-2016); and Diaz v. Palmetto General Hospital, So.3d , 41 FLW S208b (Fla. 4-28-2016). In yet another worker’s compensation attorney’s fee case decided about a week before Castellanos, the First DCA held that the §440.34 fee schedule and §440.105, Fla. Stat., which imposes criminal penalties against an attorney who receives a fee for services rendered in connection with proceedings under Chapter 440 that has not been 12 | May/June 2016 | www.FloridaJusticeAssociation.org

approved by a JCC, are impermissible and unconstitutional violations of a claimant’s rights to free speech, free association and petition for redress, and violations of a claimant’s right to form contracts. Miles v. City of Edgewater Police Dept./Governmental Claims Solutions, So.3d , 41 FLW D985 (Fla. 1st DCA 4-20-2016). See the Workers’ Compensation column at Page 36 for more on these important rulings. In answering a certified question in an Engle progeny case, the Supreme Court held that individual members of the Engle class are entitled to seek punitive damages under theories of negligence or strict liability in their individual lawsuits. Soffer v. R.J. Reynolds Tobacco Co., So.3d , 41 FLW S101 (Fla. 3-17-2016). The Court quashed a decision by the First DCA which held that individual members of the Engle class action are bound by the procedural posture of the Engle class representatives when they pursue their individual lawsuits and thus cannot seek punitive damages on the counts for negligence or strict liability. The Court approved the Second DCA’s decision in Philip Morris USA, Inc. v. Hallgren, 124 So.3d 350 (Fla. 2nd DCA 2013), as to the issue of punitive damages, and disapproved the punitive damages decisions in R.J. Reynolds Tobacco Co. v. Williams, 183 So.3d 408 (Fla. 3rd DCA 9-3-2014), and R.J. Reynolds Tobacco Co. v. Ciccone, 123 So.3d 604 (Fla. 4th DCA 2013). The Court noted (quoting Hallgren) that “[t]he Engle Phase I findings simply closed the door on any new or additional substantive claims and permitted each plaintiff to independently prove his or her respective damages, including punitive damages, at separate trials.” The number of hours expended by counsel for the defendant insurance company in a contested claim for attorney’s fees filed pursuant to §624.155 (bad faith) and §627.428 (first party claim), Fla. Stat., is relevant to the issue of the reasonableness of time expended by counsel for the plaintiff, and discovery of such information, where disputed, falls within the sound discretion of


the trial court. Paton v. GEICO General Ins. Co., So.3d , 41 FLW S115 (Fla. 3-24-2016). “The hours expended by the attorneys for the insurance company will demonstrate the complexity of the case along with the time expended, and may belie a claim that the number of hours spent by the plaintiff was unreasonable, or that the plaintiff is not entitled to a full lodestar computation, including a multiplying factor.” In Engle progeny cases, for purposes of the November 21, 1996, “cut-off date” for class membership (the date by which a condition or disease must have first manifested itself ), “manifestation” is defined as “the point at which the plaintiff began suffering from or experiencing symptoms of a tobacco-related disease or medical condition.” R.J. Reynolds Tobacco Co. v. Ciccone, So.3d , 41 FLW S118 (Fla. 3-24-2016). The Court further noted that under this definition, the plaintiff does not need to have been formally diagnosed or know that the symptoms were tobacco-related prior to the “cut-off date” for class membership. The Supreme Court adopted via its “fast-track” procedure amendments to Fla. Rules of Judicial Administration 2.516, relating to service of pleadings and documents, and 2.525, relating to electronic filing, in response to a recent upgrade to the Florida Courts E-Filing Portal, which increases the size capacity for documents filed and served through the Portal. In Re: Amendments to Fla. Rules of Judicial Admin. 2.516 and 2.525, So.3d , 41 FLW S145 (Fla. 4-14-2016). Specific file size limitations in the rules were replaced with a reference to “the appropriate size limitations specified in the Florida Supreme Court Standards for Electronic Access to the Court.” “[A] prevailing party is entitled to statutory attorney’s fees under the Public Records Act when the trial court finds that the public agency violated a provision of the Public Records Act in failing to permit a public record to be inspected or copied … [and t]here is no additional requirement, before awarding attorney’s fees under the Public Records Act, that the trial court find the public agency did not act in good faith, acted in bad faith, or acted unreasonably.” Board of Trustees, Jacksonville Police & fire Pension Fund, So.3d , 41 FLW S146 (Fla. 4-14-2016). The Supreme Court approved decisions from the First and Second DCAs and disapproved conflicting decisions from the Third, Fourth and Fifth DCAs that require a showing that the public agency acted unreasonably or in bad faith before attorney’s fees can be awarded. The Supreme Court has authorized several changes to the Standard Jury Instructions. In Re: Standard Jury Instructions in Civil Cases— Report No. 15-02, So.3d , 41 FLW S160 (Fla. 4-21-2016), relocated instruction 402.16 (relating to certain emergency medical treatment claims), to a new Appendix E; and In Re: Standard Jury Instructions in Civil Cases—Report No. 15-01, So.3d , 41 FLW S164 (Fla. 4-212016), created new instruction 301.11 (Failure to Maintain Evidence or Keep a Record) and revised instructions 402.4 (Medical Negligence), 501.5 (Other Contributing Causes of Damages), 501.7 (Reduction of Damages to Present Value/Personal Injury and Property Damage), and 502.7 (Reduction of Damages to Present Value/Wrongful Death).

Where a restaurant served an intoxicated customer water in an attempt to “sober her up,” and failed to follow its internal policy that called for ensuring that intoxicated patrons did not drive by taking their car keys away from them, its actions did not did not rise to the level of creating a duty to third parties under the undertaker’s doctrine. De la Torre v. Flanigan’s Enterprises, Inc., So.3d , 41 FLW D603 (Fla. (4th DCA 3-9-2016). The plaintiff argued that the restaurant’s actions constituted the assumption of a voluntary duty, which removed the case from the immunity afforded dram shops under §768.125, Fla. Stat. The court noted that the doctrine did not apply here because the restaurant’s actions did not increase the risk to the public, assume a duty owned to a third party, or create justifiable reliance by the customer. In a challenge to a municipal ordinance governing street vendors, the Third DCA wrote an extensive analysis and clarification of the scope of the rational basis test used to review whether laws violate the substantive due process provisions of the Florida Constitution in light of the decision in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014). Membreno v. The City of Hialeah, So.3d , 41 FLW D618 (Fla. 3rd DCA 3-9-2016). Its discussion covered the similarity between the state and federal tests, the origin of the test, and the five principles of Florida’s traditional rational basis test. The court concluded that McCall “did not grant Florida courts a license to overturn economic laws based upon a judicial reweighing and reevaluating of legislative findings.” An unenforceable cap on damages in a nursing home arbitration agreement went to the “financial heart” of the agreement and thus rendered the entire agreement invalid, notwithstanding the existence of a severability clause in the agreement; question certified. Estate of Novosett v. ARC Villages IL, LLC, So.3d , 41 FLW D652 (Fla. 5th DCA 3-11-2016). The arbitration provision purported to place a cap on non-economic damages and preclude the availability of punitive damages. The court held that the trial court properly held that this provision was void as against public policy under Gessa v. Manor Care of Fla., 86 So.3d 484 (Fla. 2011), but erred in concluding that arbitration should go forward because the contract contained a severability provision. “The existence of a severability clause in an agreement is clearly not dispositive of whether a void clause invalidates the entire contract. … Rather, the controlling issue is whether an offending clause or clauses go to ‘the very essence of the agreement.’” The court concluded that the limitation of liability provisions in the agreement did “go to the essence of the agreement,” thus rendering the entire agreement invalid. The court certified the question of whether the holding in Gessa controls where the contract contains a severability clause. The court subsequently reached the same conclusion and certified the same question in the similar case of Estate of Reinshagen v. WRYP ALF, LLC, So.3d , 41 FLW D1047 (Fla. 5th DCA 4-29-2016). A nursing home arbitration agreement was not procedurally unconscionable where it clearly and in plain English explained what arbitration is and what rights a party loses by agreeing to it; stated that the party should read the document carefully, ask any questions he or she may have, and, if desired, consult with an attorney; provided that acceptance of arbitration was not a www.FloridaJusticeAssociation.org | May/June 2016 | 13


CASES&COMMENTARIES

prerequisite to admission to the facility; and provided that, even if arbitration was agreed to, the agreement could be canceled within 30 days. Fla. Holdings III, LLC v. Duerst, So.3d , 41 FLW D659 (Fla. 2nd DCA 3-11-2016). The resident’s daughter acting as attorneyin-fact for her mother contended that the hurried admissions process rendered the procedurally fair agreement procedurally unconscionable, arguing that she had no legal training or experience, the documents were not explained to her orally, she was given the documents and told to sign them in a process that lasted about ten minutes, and that she was under the impression that she had to sign the documents in order for her mother to receive treatment and did not think she was allowed to decline signing it. As a result, she did not read the agreement and was unaware of its consequences. The court found that there was no evidence that anyone at the facility did anything to prevent the resident’s daughter from reading the agreement or lead her to believe that, contrary to its express terms, she could not decline to agree to arbitration and still have her mother admitted to the facility. In a tobacco liability case a substantial jury verdict for the plaintiff was reversed and the case remanded for a new trial due to improper comments made to the jury during closing argument by plaintiff’s counsel. R.J. Reynolds Tobacco Co. v. Estate of Gafney, So.3d , 41 FLW D744 (Fla. 4th DCA 3-23-2016). During closing argument,

different attorneys handled different aspects of the issues to be presented. One of the attorneys made improper statements requesting the jury to send a message through a compensatory damage award. (“Exhorting a jury with a ‘call to action’ to use its verdict to ‘speak loud and speak clear’ via a compensatory damage award, as was done repeatedly here, is improper.”) Later in the closing another attorney, while discussing the verdict form and the question of whether the decedent was addicted to cigarettes containing nicotine, insinuated that the defense attorneys were involved in a conspiracy to conceal the addictive nature of smoking. The court stated: “There is no question that [plaintiff’s] counsel went outside the broad parameters of permissible closing argument when he turned his commentary on opposing counsel. These statements were totally irrelevant to the issue of [defendants’ liability]. The insinuation that [defendants’] attorneys were engaged in a conspiracy with either the defendants or third parties to mislead, conceal, or manipulate as part of an on-going scheme did not merely push the envelope, but instead went wholly beyond the pale.” The court found “there is no reasonable possibility that the[se] errors … were harmless.” In a premises liability action arising from a roof painter’s fatal fall through a warehouse skylight, summary judgment for the defendant building owner and tenant was proper where the danger posed by the skylights was open and obvious; the decedent was personally familiar with the property and had actual knowledge of

LEGISLATIVE NOTES Calendar August 30 November 8 November 22 March 7-May 5

Primary Election General Election Organizational Session 2017 Regular Legislative Session

Final Action on 2016 Legislation Below is an update on those bills covered in the March/April Journal Legislative Wrap-Up where final action was still pending at the time of publication. Auto H659 re Automobile Insurance–Approved; Ch. 2016-133; Effective 7/1/16 H7027 re Dept. of Transportation–Approved; Ch. 2016-181; Effective 7/1/16 H 7061 re Transportation–Approved; Ch. 2016-34; Effective 4/9/16 Court System, Etc. S396 re Nonresident Plaintiffs–Approved; Ch. 2016-43; Effective 7/1/16 S1042 re Judgments--Approved; Ch. 2016-33; Effective 7/1/16 S1104 re Service of Process on Financial Institutions–Approved; Ch. 2016-180; Effective 1/1/17 S1432 re Service of Process–Approved; Ch. 2016-207; Effective 7/1/16

14 | May/June 2016 | www.FloridaJusticeAssociation.org

General Tort, Etc. S626 re Consumer Credit–Approved; Ch. 2016-160; Effective 10/3/16 H1305 re Emergency Allergy Treatment in Schools–Approved; Ch. 2016-235; Effective 7/1/16 Insurance H651 re Dept. of Financial Services–Approved; Ch. 2016-132; Effective 7/1/16 S1274 re Limited Sinkhole Coverage Insurance–Approved; Ch. 2016197; Effective 7/1/16 Med Mal & Health Care H221 re Health Care Services–Approved; Ch. 2016-222; Effective 7/1/16 H423 re Access to Health Care Services–Approved; Ch. 2016-224; Effective 4/14/16 S1170 re Health Plan Regulatory Admin.–Approved; Ch. 2016-194; Effective 7/1/16 H1175 re Transparency in Health Care–Approved; Ch. 2016-234; Effective 7/1/16 Misc. S494 re Digital Assets–Approved; Ch. 2016-46; Effective 7/1/16 S540 re Estates–Approved; Ch. 2016-189; Effective 7/1/16 S668 re Family Law–VETOED H703 re Vessels–Approved; Ch. 2016-134; Effective 7/1/16 H967 re Family Law–Approved; Ch. 2016-93; Effective 7/1/16 H1181 re Patent Infringement–Approved; Ch. 2016-101; Effective 3/29/16


the skylights; and the owner and tenant warned the decedent not to step on the skylights because he would fall through the roof, specifically provided a harness and a safety rope to protect him from any potential fall, and instructed him to wear his harness and stay fastened to the safety rope when on the roof. Fuentes v.Sandel, Inc., So.3d , 41 FLW D753 (Fla. 3d DCA 3-23-2016). The decedent was not wearing the safety harness when he stepped onto the skylight and fell to his death. The court found applicable neither the direct control exception nor the duty to warn of concealed dangers not inherent in the work exception to the general rule that a property owner will not be held for injuries sustained by the employee of an independent contractor during the performance of work on the property, and it held that neither defendant owned a duty of care under the undisputed facts of the case. Where during closing argument in a premises liability action against a city, plaintiff’s attorney improperly bolstered the credibility of a witness, attacked a party for putting on a valid defense, appealed to the conscience of the community, and attacked the defendant’s doctors as being “courtroom doctors” who “have their little tricks” and were paid to say that the plaintiff was not hurt, the trial court properly found that the cumulative effect of the improper comments did not, given the facts of the case, deprive the defendant of a fair trial. City of Miami v. Kinser, So.3d , 41 FLW D755 (Fla. 3rd DCA 3-23-2016). The court noted that most of the improper arguments were timely objected to, curative instructions were given by the trial court, and the prejudice to the defendant was mitigated by the curative instructions. The “courtroom doctors” comment, though improper, was not objected to and the defendant failed to meet its resulting burden of having to show that the comment could not have been cured by a timely objection and curative instruction and that the comment was so damaging to the fairness of the trial that the public interest required a new trial. A trial court’s denial of a petition seeking approval pursuant to Florida Bar Rule 4-1.5(f )(4)(B) for an attorney fee contract providing for a fee in excess of the standard 33-1/3 percent amount does not rise to the level of a departure from the essential requirements of law that would be subject to certiorari review. Mahany v. Wrights’ Healthcare & Rehabilitation Center, So.3d , 41 FLW D830 (Fla. 2d DCA 4-1-2016). Here, in support of her petition for approval of a straight 40 percent contingency fee for her counsel, the petitioner had presented the trial court with an affidavit stating that she understood she was waiving her right to retain counsel at a rate consistent with Rule 4-1.5 but that she would not be able to obtain counsel of her choice without this waiver, which is the Rule’s requirement for departure from the standard fee. The Second DCA was not persuaded that this affidavit obviated the need for an evidentiary hearing, noting that the rule requires authorization for the nonstandard fee to be given “if the court determines the client has a complete understanding of the client’s rights and the terms of the proposed contract.” “A waiver of this right in a sworn petition for approval of an attorney fee contract deprives the trial court of the ability to assess the client’s competence, understanding, and willingness to waive such a right. The better practice is to present the client before the court to allow the court to assess her understanding of her rights

and to confirm that she has made a knowing and intelligent waiver of her rights under the rule.” “[A]n offer of judgment which purports to resolve all claims is invalid if the case includes both monetary and nonmonetary causes of action…[but w]hat is less clear, however, is whether an offer purporting to resolve only monetary claims in a suit also containing a nonmonetary cause of action is valid.” MYD Marine Distributor, Inc. v. International Paint, LTD, So.3d , 41 FLW D911 (Fla. 4th DCA 4-13-2016). The court discussed, but found it did not need to decide, this issue, as it concluded that under the facts of the case the trial court properly applied the “true relief ” analysis set forth in Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362 (Fla. 2013), which suggested that §768.79, Fla. Stat., may be utilized in a suit seeking monetary relief if the “true relief ” sought is monetary. Here, the court found that although the plaintiff sought both damages and equitable relief in the form of a permanent injunction in its complaint, it did not actually pursue any nonmonetary relief during the course of the litigation and sought only money damages. Thus, the “true relief ” sought by the plaintiff was monetary, and the defendant’s offers of judgment, which were expressly limited to the money claims, were enforceable. The trial court properly awarded attorney’s fees for the time spent preparing for and conducting a trial as a sanction when a mistrial occurred because of a defendant’s misconduct with a witness, but it erred in also awarding fees for the subsequent second trial, which also ended in a mistrial, and the third trial. Public Health Trust of Miami-Dade Co. v. Denson, So.3d , 41 FLW D929 (Fla. 3d DCA 4-13-2016). The court in this medical malpractice case had instructed that trial matters not be discussed with any witness or party; however, the defendant doctor engaged in a case-related conversation with a witness outside the courtroom when jurors were a short distance away. A second incident involved a conversation between the doctor, defense counsel, and the same witness in a restroom where a juror overheard the conversation. The court found that the defendant’s misconduct was willful, deliberate, and intentional, and that the trial court properly imposed sanctions, but it abused its discretion when it awarded fees beyond that necessary to compensate plaintiff for its preparation for and conduct of the first trial. “An attorney’s fee award must directly relate to the attorney’s fees and costs that the opposing party incurred as a result of the specific bad faith conduct.” In a suit against a governmental entity, compliance with the requirement that notice be provided to the appropriate agency and to the Department of Financial Services as a condition precedent to bringing suit must be alleged in the complaint, but such allegation need only be made generally in accordance with Fla.R.Civ.P. 1.120(c). Nelson v. Hillsborough Co., So.3d , 41 FLW D953 (Fla. 2d DCA 4-15-2016). After compliance is alleged, the burden shifts to the defendant to specifically deny such compliance. If compliance is so denied, then the burden shifts back to the plaintiff to prove the allegations concerning the subject matter of the specific denial, but that proof does not take place at the motion to dismiss phase of proceedings. In this case, the defendant moved to dismiss, arguing that plaintiff failed to allege compliance with the notice requirements within the

www.FloridaJusticeAssociation.org | May/June 2016 | 15


CASES&COMMENTARIES statutory time frame and failed to attach any documentation to prove compliance. At the hearing on the motion to dismiss, the trial court asked plaintiff if she had any proof that timely notice had been sent. In response, she argued that notice had been properly pleaded and that she was not required to produce such proof at this stage. Eventually, in response to repeated questioning by the court, counsel stated that a timely letter had been sent to the Department, but that she could not locate and was not able to produce a copy of the letter. With that, the trial court determined that the allegation of notice in the complaint was insufficient because it did not provide a date or include a copy of the letter, and it dismissed the case with prejudice and entered final judgment for the defendant. In reversing and remanding, the Second DCA held that in reaching its conclusion the trial court improperly looked outside the four corners of the complaint to resolve a factual issue that was not properly before it on a motion to dismiss. “[T]he trial court has no authority on a motion to dismiss to resolve questions of fact or consider the sufficiency of the evidence that either party may ultimately produce.” The court also noted, that even if the pleading was insufficient with regard to the notice requirement, the proper remedy would have been to dismiss the complaint without prejudice. The First DCA reached a similar conclusion that a dismissal with prejudice based on factual matters outside the complaint against a governmental entity was inappropriate in Williams v. The City of Jacksonville, So.3d , 41 FLW D1111 (Fla. 1st DCA 5-6-2016). “[T]he general allegations of compliance with sections 95.11(3)(a) and 768.28(6)(a), Florida Statutes, were sufficient to allege compliance with the conditions precedent to the lawsuit. Plaintiff’s failure to allege that she had complied with the City’s ordinance requiring service of notice upon the General Counsel did not render the complaint deficient because rule 1.120(c), Fla.R.Civ.P., does not require citation to each statute or rule setting out of affecting the conditions precedent.” A jury award of exactly 100 percent of the defendant’s net worth would result in his financial devastation and was therefore excessive to the point of being unconstitutional. State Farm Mutual Auto. Ins. Co. v. Brewer, So.3d , 41 FLW D1070 (Fla. 2nd DCA 5-4-2016). The case arose from an automobile accident caused by the defendant, a physician, who fell asleep at the wheel, having taken prescription sleeping medications before setting out on a three-hour car trip. The court remanded for a remittitur or, at the plaintiff’s discretion, a new trial limited to the issue of punitive damages. In an action arising from an intersection collision between a truck and a motorized skateboard being ridden on the street by a 12-year-old and his friend, a number of material facts precluded summary judgment for the defendants who were alleged to have been negligent in maintaining foliage that blocked the view in the intersection. Piedra v. City of North Bay Village, So.3d , 41 FLW D1087 (Fla. 3rd DCA 5-4-2016). The intersection where the incident occurred contained a “bulb-out” which had been planted by the city with foliage and an adjacent homeowner’s hedge. Both the truck driver and the skateboarder claim to have stopped before entering the intersection; the truck driver said he never saw the skateboarders, who were riding in either a crouched or sitting position, because of the foliage. The skateboarders said they had briefly glimpsed the vehicle through a gap in the hedge. The plaintiff skateboarder was injured in the collision and sued multiple defendants, including the 16 | May/June 2016 | www.FloridaJusticeAssociation.org

city, the city’s contract grounds keeping service, and the hedge-owning property owner (the driver was voluntarily dismissed). The city moved for summary judgment on the basis that its planting in the bulb-out was a planning decision for which it was immune, the grounds keeping service moved for summary judgment on the basis that it did not have a duty to maintain the bulb-out plantings under its contract with the city, and the property owner moved for summary judgment on the basis that there was no evidence that his hedge violated any city ordinance on the day of the accident. The trial court granted summary judgment in favor of all three defendants, and the Third DCA reversed as to all three. It found the city’s decision to plant the bulb-out was planning level for which it was immune, but the city also had an operational level duty to maintain the planted areas, and whether it failed to do so in a manner that obstructed visibility in the intersection was a question of fact for the jury. It found evidence in the record indicating that the grounds keeping service, contrary to its assertion, did have an obligation to maintain the bulb-outs, so summary judgment for it was also inappropriate. And, it found there were questions regarding whether the homeowner’s hedge was within or outside the property boundaries, the height of the hedge at the time of the accident, and whether the hedge obstructed visibility. The court concluded that genuine issues of material fact remained to be resolved by a jury with regard to each defendant. In a premises liability action based on a trip and fall over a short piece of re-bar protruding from the ground in a curb-bordered landscaped area in a mall parking lot, questions of fact raised by evidence in the record as to whether the property owners had constructive knowledge that the area presented a dangerous condition made summary judgment inappropriate. Grimes v. Family Dollar Stores of Fla., Inc., So.3d , 41 FLW D1089 (Fla. 3rd DCA 5-42016). The parking lot was divided into rows separated by the curbed landscaped areas, which contained grass, dirt, and trees secured to re-bar tie-downs. The evidence indicated that the spot where plaintiff tripped had become a well-worn path through the landscaped area as it was being used as a shortcut by business invitees to access the defendant’s store. The court noted that a defendant owner or occupant may be held liable for failure to maintain the property in a reasonably safe condition if it had actual or constructive knowledge of the condition and that constructive knowledge may be inferred if a dangerous condition existed for such a length of time that in the exercise of reasonable care the condition would have been known to the defendant. “Therefore, triable issues exist as to whether a dangerous condition existed, whether it was open and obvious and whether constructive knowledge may be inferred that the dangerous condition existed for such a length of time that in the exercise of reasonable care the condition would have or should have been known to the defendant.” Here, the court found such factual issues precluded summary judgment.

Ken Kranz, FJA Journal Editor-in-Chief

Mr. Kranz is Editor-In-Chief and columnist for the FJA’s monthly Journal. Mr. Kranz has 40 years of legislative experience and formerly served as the Senior Legislative Counsel with various responsibilities related to the FJA legislative activities.


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www.FloridaJusticeAssociation.org | May/June 2016 | 17


TIPSFORAUTOPRACTITIONERS

WE’RE GONNA NEED A

BIGGER COURTHOUSE

BY DALE SWOPE

T

raditionally, appellate courts have deferred to the trial courts the details of how trials are actually run. Issues like the admissibility of borderline evidence, curative instructions, evasive witnesses, argument of counsel, managing the behavior of participants whose conduct can affect the outcome, and the like, have been trial court decisions, and there is good reason for this. Trials have a “feel” that is palpable, and the judge who is in the room is in touch with the case in a way that appellate courts just can’t be.

reasonable possibility the error may have contributed to a verdict, it is considered harmful. Spec. v. W. Boca Med. Ctr., 160 So. 3d 1251 (Fla. 2014), reh’g denied (3-26-15). We suddenly work in an environment where all error is considered harmful until proven otherwise.

Trial courts see and hear the events, as opposed to reading about them, and have a sense of the impact these things actually have on the jury. That judge, on the ground, also better understands the importance of the affected issue to the case, and whether the events involved will, in real life, detrimentally affect the outcome in a material way.

Instead, the trend seems to be going in the other direction. Even trial decisions made for very good reasons, in areas that are not clearly defined by law because they were traditionally considered discretionary, are more and more likely to be branded as error and resulting in the reversal of perfectly reasonable verdicts. Simply put, this new standard of perfection is going to make for a lot of new trials.

The importance of this discretion has recently skyrocketed, with the dramatic new view of what errors are reversible. Error was always harmless unless the complaining party could prove otherwise. Now, the default condition has flipped, and unless you can prove there was no 18 | May/June 2016 | www.FloridaJusticeAssociation.org

The interests of judicial economy now, more than ever, dictate that we carefully consider what we call “error,” as opposed to what falls between the lines and into the lane of trial court discretion.

Take for example, State Farm Mut. Auto. Ins. Co. v. Long, that reversed a trial court’s decision to allow a highly trained physician’s assistant to


testify as an expert on plaintiff’s need for future medical care that fell within the PA’s license. So.3d , 2016 WL 1600606 (Fla. 5th DCA Apr. 22, 2016). Consider State Farm Mut. Auto. Ins. Co. v. Gold, that ordered a new trial because counsel said the defendant had not taken responsibility for the claim, and posted this in a PowerPoint. 186 So. 3d 1061, 1064 (Fla. 4th DCA 2016), reh’g denied (4-12-16). And then there was, of course, Maniglia v. Carpenter, that reversed the trial court’s decision to exclude highly entertaining but prejudicial features of the plaintiff’s subsequent drunken golf cart accident and ensuing fist fight with police officers. 182 So. 3d 18 (Fla. 3d DCA 2015), reh’g denied (Jan. 12, 2016). Trial judges have a tough job, crossing a swamp without a master plan, by taking a step then looking for the next dry spot. They are, by and large, a satisfyingly competent group. If given the power to run their own trials with guidance from the law, they can usually find the right path to fair administration of justice. Instead of constantly micromanaging them, it may be time to consider wisdom imparted by the original Abraham Lincoln animatronic at Disney’s Hall of Presidents, who quoted a founding father’s observation that we should all “learn to doubt a little of our own infallibility.” Sending the Wrong Message About Sending a Message In what might be the worst recent example of appellate remoteness, the Fourth District reversed for a new trial because it believed the plaintiff’s argument requested the jury to send a message through compensatory damages. R.J. Reynolds Tobacco Co. v. Gafney, So.3d , 2016 WL 1128480 (Fla. 4th DCA 3-23-16). In an Engle tobacco case, the plaintiff’s attorney told the jury: …in your verdict…speak the truth. Your verdict must speak loud and it must speak clear. And the truth your compensation verdict must speak is the amount of money it will take to compensate and equalize, balance the harm that has been done in this case. First – this is not an improper argument even if it is interpreted as a request of the jury to “send a message” to the defendant. That just isn’t improper. A jury’s verdict, inevitably, sends a message to the litigants who contested factual matters the jury was charged to decide. The exact process for sending this message is fairly standard. After discussing the evidence and the law and coming to a unanimous agreement about how the case should be decided, the foreman of a jury will typically write that decision onto a verdict intended to be delivered to others who cannot be contacted directly – i.e, a message. http://www.merriam-webster.com/dictionary/message. They knock, the bailiff answers, they deliver their message to the bailiff with the implicit understanding that it will be sent to the judge. The judge gives the jury’s message to the clerk, who reads it, then delivers copies of the message to the litigants and everyone else in the courtroom.

It is only because every jury sends a message to the court and litigants that we figure out how the case was decided. That time honored process is universal and inevitable, and it seems unfathomable that a court could say it is error to ask a jury to comply with it. What is improper, of course, is to invite the jury in a compensatory damage case to send a message to the community, to people in the defendant’s position, or generally to others outside the courtroom who are not involved in the case, or an argument that addresses an issue beyond the immediate ones actually being decided. A jury should not, for example be asked to use its verdict, to “let the drunk drivers of the world know they aren’t welcome here in River City” – or anything similar. Dubus v. Pietz, 728 So. 2d 769 (Fla. 1st DCA 1999). But that did not happen here. This lawyer simply asked the jury to be truthful and clear concerning the specific matters it was charged to decide the amount of money it will take to compensate and equalize, balance the harm that has been done in this case. That is, actually, a near perfect paraphrase of the juror’s oath they took at the beginning of the trial. Second, even if we lived in a world where it was improper to ask the jury to be sure their verdict spoke the truth, declining to nullify a two or three week trial over these three sentences, after a verdict that fell comfortably in the middle zone of these cookie-cut Engle cases, does not seem like an abuse. Just to see how far we have come, compare this excerpt from a 1974 case involving lawyers who were, at that time, the most respected and important members of our profession. Defense attorney Hoeveler called JB Spence: “a great salesman,” who was attempting to turn tragedy into a “commercial venture,” because “somebody wants the Cadillacs and somebody wants the big houses.” JB Spence responded in his closing by arguing: You know, does Mr. Hoeveler really think that you are stupid? Does he? It is incredible to me. You know, he is the insurance company’s lawyer. Think about that. Good looking, smooth, silky, charming; but his job is to get out as cheap as he can. Throw some pennies down there. “These nice folks,” he says, but they will walk back to the office and call Continental Insurance Company and say, “Boys, I did it again. I soft soaped that jury. They gave those people pennies and I am a hero with Continental.” You all weren’t born yesterday. That is his job. He is a magician, sleight of hand. Metropolitan Dade County v. Dillon, 305 So.2d 41 (Fla. 3d DCA 1974) (from J. Barkdull, concurring in part, dissenting in part).

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TIPSFORAUTOPRACTITIONERS This argument was considered an “emotional and heated debate” for sure, but was held not to require a new trial or any other appellate intervention with the trial court’s control of its courtroom. Can I at Least Ask the Jury to “Get it Right?” In another closing argument case, the Third District affirmed the lower court’s denial for a new trial, but only because the improper statements did not deprive the defendants of a fair trial. City of Miami v. Kinser, So.3d 2016 WL 1125833 (Fla. 3d DCA 3-23-16). In this case, the trial court asked the jury to disregard several statements made by the plaintiff’s counsel during closing. These statements included “improper bolstering,” when mentioning the plaintiff’s honest testimony about her limitations. The court cited Rule 4-3.4(e) of the Rules Regulating the Florida Bar, that an attorney cannot express a personal opinion bolstering the credibility of his witness. The trial court and the Third District found that these statements were improper. What the court did not mention was that the plaintiff’s attorney here did not purport to express a personal opinion and instead seemed to suggest only that the evidence, including the plaintiff’s medical records, her answers under cross and the testimony of other witnesses all established that the plaintiff accurately and truthfully testified to her damages and injuries. Counsel juxtaposed this against the defendant’s witnesses who, he claimed, “were paid to make stuff up.” The Third District held it was improper to have pointed that out in closing. The court also determined these statements to be incorrect: She doesn’t get to come back. This is her one chance to be before you. This is her one shot. It’s all of your one shot to get it right, so go back there and take your instrument and get it right.

In another, the court invalidated a PFS when the PFS stated “This proposal for settlement is inclusive of all attorney’s fees and costs incurred by plaintiff or defendant,” but it did not specify that that the attorney’s fees were part of the legal claim and thus not complying with Rule 1.442(c)(2)(F) that a PFS must include “whether attorneys’ fees are part of the legal claim.” Deer Valley Realty, Inc. v. SB Hotel Associates LLC, So.3d , 2016 WL 1660619 (Fla. 4th DCA 4-27-16). How, earnestly, would you say this more clearly? “We have a pending suit against you that does not include an entitlement to fees. We want you to know that if you pay the amount we are requesting that any theoretical un-plead claim for fees will also be extinguished, and you will be free to go about your business without further trouble from us. If you don’t however, and we get an appropriate judgment against you, we will be seeking fees, and want to give you fair notice of that.” This is the situation in 99 percent of the cases, and with the “standardized form” the courts require, this information just doesn’t lend itself to an easy expression. The one in this case did it just about as well as it could be done, but the court found a way to take strict construction to an illogical level nonetheless. In another PFS case, the concurring opinion agrees that the ability to fix these issues is beyond the court’s jurisdiction at this point. Vanguard Car Rental USA, LLC v. Suttles, So.3d , 2016 WL 1658764 (Fla. 3d DCA 4-27-16). The concurrence proposes an amendment that requires the offeree of an invalid PFS to notify the offeror of any defects, then allow the offeror the opportunity to cure those defects so the courts don’t have to deal with it at all. The problem with this is that it creates yet another requirement for the PFS. We need a new rule that simplifies the statute, not adds another complicated element to the already confusing rule. At least the judiciary is recognizing the absurdity of the amount of litigation over the PFS statute.

Although this case was not reversed for a new trial, the precedent that it sets will certainly reverse the next case for “improper” arguments.

Ordering a Psychological Examination Without Specific Limitations on the Scope of the Examination, Is Prohibited. Espinosa v. D.H. Griffin Const. Co., LLC, So.3d , 2016 WL 1366904 (Fla. 3d DCA 4-6-16).

Another Example of Why it is Past Time for Legislative Intervention in the Proposals for Settlement

Standard Liability Policy Does Cover Court Awarded Fees After All

At this point, there really is no other solution to the mess created by judicial decisions concerning proposals for settlement (“PFS”) besides changing the statute itself. Every time a PFS case is released, it adds to the confusion. Three new cases were released that continue to create further ambiguity where there was none.

Twenty-one years ago, a pivotal case in insurance law was released that held the insurance company liable for the plaintiff’s prevailing party costs under the supplemental payments provision that is commonly found in liability policies. Fla. Ins. Guar. Ass’n v. Johnson, 654 So. 2d 239 (Fla. 4th DCA 1995). The court explained that the insurer not only made the decision to defend the case instead of settling, but it also had the sole discretion to do this and the supplemental payments provision unambiguously covered the plaintiff’s costs associated with bringing the action.

In one, the court held that a PFS was ambiguous regarding attorney’s fees and costs when the proposal itself said there was no claim for fees “at this time” and the proposal was “inclusive of costs.” Maines v. Fox, So.3d , 2016 WL 1741950 (Fla. 1st DCA 5-3-16). The court reasoned it was a patent ambiguity since a prior statement in the PFS said it did not include attorney fees or costs and by later saying the fees were not included “at this time,” it implied that fees could be taxed at a later time.

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But six years later, the Second District certified a conflict with Johnson, holding that attorneys’ fees and costs under the PFS statute were not covered under a very similar supplementary payments provision. Steele v. Kinsey, 801 So.2d 297 (Fla. 2d DCA 2001). The Supreme Court initially accepted jurisdiction, but later dismissed the case finding review was improvidently granted. 840 So.2d 1023 (Fla. 2003).


Fortunately, this confusion has been sorted out recently. First, in the decision in New Hampshire Indemnity Company v. Gray, 177 So. 3d 56 (Fla. 1st DCA 2015), the First District found there was no definition for the policy provision that read “other reasonable expenses incurred at our request,” making the insurer liable for the costs associated with choosing to litigate the case instead of accepting a settlement that was four times less than the verdict. Now, in GEICO v. Macedo and Lombardo, the same court, in a per curiam opinion, followed Gray and construed the policy language “all investigative and legal costs incurred by us” and “all reasonable costs incurred by an insured at our request” to include the costs and fees resulting from a triggered PFS. So.3d , 2016 WL 2610605 (Fla. 1st DCA 5-6-16). Like in Gray, the policy itself did not provide definitions or exclusions to what this provision actually encompassed, so the court determined that choosing to litigate instead of settling was included under the policy language. Importantly, this case was not decided as a matter of public policy, and fairness – only the courts can do that. It was decided as a matter of policy interpretation that presumably will last only if the Insurance Commissioner is diligent enough to prevent insurance companies from changing the wording to something that passes the burden of insurer intransigence to their innocent customers. New Burden Required to Oppose a Summary Judgment? The Fourth District affirmed a trial court’s order granting a motion for summary judgment, even though the evidence was in the record to oppose the motion because the non-moving party did not identify where in the record that evidence was. State Farm Mut. Auto. Ins. Co. v. Figler Fam. Chiropractic, P.A., So.3d , 2016 WL 1239764 (Fla. 4th DCA 3-30-16). This case seems like a change. The traditional standard that the movant has to demonstrate is that there is no possibility of a factual dispute, and the trial court should state that it has examined the entire record before granting the motion. See Pep Boys-Manny, Moe & Jack, Inc. v. Four Seasons Com. Maint. Inc., 891 So. 2d 1160, 1161 (Fla. 4th DCA. 2005) (holding where the record demonstrates the possibility of a disputed fact, summary judgment is improper); Glisson v. North Florida Telephone Co., 210 So.2d 25, 27 (Fla. 1st DCA 1968) (“[E]ntire record in negligence case, including pleadings, depositions, and evidence produced at trial leading to jury verdict for plaintiffs, did not support summary judgment…”). An Enhanced Fee Petition Filed After the Case Is Settled Is Unsettling to the Court Two days after filing suit, the plaintiff’s attorney sent a letter to the court informing it of a pre-suit settlement and attaching a petition for a flat 40 percent fee contract that included a statement that the client waived any right to be heard by the court. The court’s denial of the petition was affirmed, with the court going so far as to say that anytime the court does not meet the client, it is hard to know if the plaintiff actually understood or approved of the terms of the contract. Mahany v. Wright’s Healthcare & Rehab. Ctr., So.3d , 2016 WL 1273256 (Fla. 2d DCA 4-1-16).

The lesson may be that it is always going to be suspect to seek approval of an enhanced fee contract after a settlement has already been reached. It’s just hard to imagine that the client could not obtain the counsel of choice without the enhanced fee, when he apparently already did, and got a settlement everybody liked, all before an enhanced contract was ever approved. Billing Records of the Adverse Attorney Can be Obtained in Discovery after Entitlement to Court Awarded Fees has Been Established. Paton v. GEICO Gen. Ins. Co., So.3d , 2016 WL 1163372 (Fla. 3-24-16). Any privileged information will be redacted, but the key data – how much time the defense team spent driving up the complexity of the litigation, will be discovered. Recent UM Bad Faith Opinions Dismissal of the UM bad faith claim after an excess verdict has been reached is improper. Calhoun v. Travelers Home and Marine Ins. Co., SC14-2210, 2016 WL 1668491 (Fla. 4-27-16). After the jury awarded damages in excess of the UM policy benefits, the insured jumped the gun by adding the UM bad faith claim before the judgment in the amount of the policy benefits was entered and the appellate clock ran. Johnson v. State Farm Mut. Automobile Ins. Co., 615CV1942ORL31TBS, 2016 WL 1127748 (M.D. Fla. 3-21-16). Following Fridman, a federal court abated a premature UM bad faith claim, instead of dismissing it because abatement “offers at least the possibility of increased judicial efficiency for those bad faith claims that do become ripe.” Braddy v. Infinity Assurance Ins. Co., 615CV119ORL28GJK, 2016 WL 1446202 (M.D. Fla. 4-11-16) (quoting Gianassi v. State Farm Mut. Auto. Ins. Co., 60 F. Supp. 3d 1267, 1271 (M.D. Fla. 2014). A federal court denied GEICO’s motion to bifurcate the issue of the determination of total damages from its liability for UM bad faith. Levesque v. Govt. Employees Ins. Co., 15-14005-CIV, 2016 WL 1156288 (S.D. Fla. 3-24-16). The court held that routine autoaccident injuries are not of the inflammatory nature that invokes the exception to the general rule that all aspects of a case should be tried as one. The court did suggest it would consider special “curative” instructions at trial and it is presumed that juries obey the court’s instructions.

Dale M. Swope

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

www.FloridaJusticeAssociation.org | May/June 2016 | 21


INSURANCE

INSURANCE DECISIONS

From Around the State by Richard Benrubi

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22 | May/June 2016 | www.FloridaJusticeAssociation.org

The Florida Supreme Court Holds That Opposing Counsel’s Billing Records Are Relevant and Discoverable Where the Reasonableness of The Claimed Amount Is Contested Paton v. GEICO General Insurance Co., So.3d , 41 FLW S115, 2016 WL 1163372 (Fla. 3-24-2016) In the last issue in which this column appeared, Greg Yaffa wrote that the future of bad faith in Florida is looking bright thanks to the 11th Circuit’s Moore v. GEICO1 decision, and the Florida Supreme Court’s decision in Fridman v. Safeco2. Now, a few months later, the future is looking even brighter as a result of two recent decisions which finds our favorite lizard in the loss column, including one in which the author has represented, and continues to represent a GEICO insured during a six-year odyssey which includes two separate trips to the Florida Supreme Court. In Paton v. GEICO, Kelly Paton, a passenger, was injured in a 2008 car accident due to the negligence of an underinsured driver. The drivers’ insurance company, GEICO General Insurance Company (“GEICO”), paid Paton the $10,000 policy limit. Paton’s mother maintained uninsured/underinsured coverage with GEICO, with $100,000 of coverage. Paton’s attorney demanded the $100,000 policy limit from GEICO. GEICO offered $1,000. After GEICO’s expert reviewed Paton’s MRI which, according to his expert, showed that she had two lumbar herniations, GEICO maintained its $1,000 offer. Later, GEICO raised its offer to $5,000, but returned to the $1,000 offer after Paton refused to settle. In an attempt to resolve the case Paton reduced her demand to $22,500. GEICO did not respond to this offer. The case went to trial in 2010. The jury returned a verdict in Paton’s favor and against GEICO. The verdict set Paton’s total damages at $469,247. GEICO did not file a motion for new trial. Judgment was entered in favor of Paton, but was limited to the $100,000 UM policy limit. GEICO paid the final judgment. With leave of court, Paton amended her complaint to add a claim of bad faith under section 624.155, Florida Statutes (2010). Before trial, Paton moved in limine to exclude evidence of damages; she argued that the excess verdict returned in the UM trial established the damages she could recover under her bad faith claim. In opposition, GEICO filed its own motions in limine seeking to (1) exclude from evidence in the bad faith trial the verdict returned in the UM trial and (2) require


Paton to prove her damages anew in the bad faith trial. The circuit court granted Paton’s motions and denied those of GEICO. The jury found for the plaintiff. The circuit court entered a Final Judgment in the amount of the excess bad faith verdict from the UM trial ($369,247) plus prejudgment interest. On appeal, GEICO argued that the circuit court erred by treating the excess verdict from the UM trial as conclusive evidence of Paton’s damages in the bad faith trial, thereby denying the company procedural due process and violating its right to appeal and access to the courts. Based on the plain language of § 624.155; the Supreme Court’s jurisprudence in first-party bad faith actions; and GEICO’s failure to challenge the damage award after the first trial or on this appeal, the Fourth District concluded that the initial action between the same parties fixed the damage amount in a first party bad faith action. The Court rejected GEICO’s heavy reliance on King v. GEICO3 and did not discern the due process conundrum identified by Judge Altenbernd’s concurring opinion in GEICO v. Bottini4. Moreover, the Court reasoned that forcing a retrial of the insureds damages at the bad faith trial would promote bad public policy and judicial inefficiency. After the Fourth DCA affirmed the trial court, I correctly predicted that this issue would ultimately be decided by the Florida Supreme Court. While the Supreme Court initially granted GEICO’s petition for discretionary review, Paton was stayed pending the Supreme Court’s Fridman decision. Ultimately, the Supreme Court declined to review Paton after holding in Fridman that the underlying UM excess verdict conclusively establishes the measure of damages in the subsequent bad faith case. GEICO recently paid the excess verdict together with four years of post-judgment interest. However, Paton has yet to liquidate the amount of attorneys’ fees GEICO owes pursuant to F.S. section 624.155 and/or 627.428. That is because GEICO objected to producing its defense attorneys’ billing records, while at the same time contending that the author’s claimed hours are unreasonable and excessive. While the trial court overruled GEICO objections and ordered that the billing records be produced, the Fourth District granted GEICO’s Petition for Writ of Certiorari and quashed the trial court’s order, finding that defense counsel’s billing records are only marginally relevant to the determination of reasonable attorneys’ fees. Paton then petitioned the Supreme Court to review the Fourth DCA’s opinion, contending that it expressly and directly conflicts with the Florida Supreme Court’s State Farm v. Palma5 decision. The Supreme Court quashed the decision of the Fourth DCA and held that the billing records of opposing counsel are relevant to the issue of the reasonableness of the time expended in a claim for attorneys’ fees and their discovery falls within the discretion of the trial court when the fees are contested. The Court reasoned that the hours expended by the attorneys for the insurance company will demonstrate the complexity of the case along with the time expended, and may belie a claim that the number of hours spent by the plaintiff was unreasonable, or that the plaintiff is not entitled to a full lodestar computation, including a multiplying factor. With respect to an insurer’s claim of work product or attorney-client privilege, the Court noted that the insurer can simply redact the allegedly privileged information.

This case represents a tremendous victory not only for Florida insureds battling the bad faith conduct of insurance companies, it will also benefit individuals and businesses statewide who find themselves in disputes on substantive issues where fee shifting is permitted either pursuant to contract or statute. In Paton, we hope to liquidate our fees sometime in the fall. With two novel issues of law having been determined by the state’s highest court, can anyone say a 2.5 multiplier is in order? While I suggest that the unequivocal answer is a resounding YES, I have no doubt that our litigious lizard would appeal, thereby prolonging this never ending saga. Insurer Has a Duty to Defend Insured Against Class Action Lawsuit Old Dominion Ins. Co. v. Stellar Concepts & Designs, Inc. So.3d , 41 FLW D916 (Fla. 4th DCA 4-13-16) The underlying lawsuit arose from a previously-settled class action lawsuit in the state of Washington. In that litigation, the plaintiffs alleged that they were the recipients of phone calls with a pre-recorded message soliciting the plaintiffs to use Stellar for their business needs. The plaintiffs alleged that the calls were in violation of the Washington Consumer Protection Act and the basis of the plaintiffs’ damages was found to be loss of use of their telephones because of being inundated with Stellar’s robotic telephone solicitations. The Washington litigation resulted in a settlement and judgment in favor of the plaintiffs. At all times relevant, Stellar was insured under a general liability insurance policy and an umbrella policy issued by Old Dominion. In pertinent part, the general liability policy provides that Old Dominion “will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’” that is caused by an “occurrence.” Following the judgment in the Washington litigation, Old Dominion filed the underlying action, seeking a declaratory judgment that it had no duty to indemnify or defend Stellar for the claims in the Washington litigation. The parties each moved for summary judgment. The trial court determined that coverage existed under the policy and entered judgment in favor of the plaintiffs in their suit against Stellar. On appeal, Old Dominion argued that there was no “occurrence” to trigger coverage under the policy. Alternatively, it contended that, if there was an occurrence, then the “expected or intended injury” exclusion applies because the calls were placed intentionally, not accidentally, and Stellar knew the calls would necessarily result in loss of use of the phone lines. The plaintiffs argued that the calls qualify as an “occurrence” because the undisputed evidence showed that Stellar lacked specific intent to cause harm to a third party. They further argued that the trial court correctly found that the expected or intended injury exclusion does not apply because, while the calls were intentionally placed, the damages were not intentionally caused. Under the subject policy, “[o]ccurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” “Accident” is not defined.

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INSURANCE

The Fourth District Court of Appeals affirmed the trial court’s ruling in favor of coverage, as there was no record of evidence that Stellar intended to cause an injury or break state law by placing the phone calls. In so holding, the Court relied on the rule of law announced in the Florida Supreme Court’s decision in State Farm v. CTC Development Corp., 720 So.2d 1072 (Fla. 1998), which is that: “[W]hen the term ‘accident’ is undefined in a liability policy, the term includes not only ‘accidental events,’ but also damages or injuries that are neither expected nor intended from the viewpoint of the insured.” Id. at 1072. In so holding, the Florida Supreme Court further explained: Although exclusionary clauses cannot be relied upon to create coverage, principles governing the construction of insurance contracts dictate that when construing an insurance policy to determine coverage the pertinent provisions should be read in pari materia. Reading the coverage provision of the policy together with the exclusionary clause could support a conclusion that coverage is provided in the State Farm policy for occurrences where the insured did not intend or expect to cause harm to the third party.”

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Similarly, the Court concluded that the expected or intended injury exclusion did not apply as when read in pari materia with the “occurrence” provision, the policy language supports coverage where the insured did not expect or intend to cause harm. __________ Moore v. GEICO General Ins. Co., 2016 WL 123831 (11th Cir. 2016) 2 Fridman v. Safeco Ins. Co., 41 FLW S62 (Fla. 2016) 3 King v. Government Employees Insurance Company, 2012 WL 4052271 (M.D. Fla. 2012) 4 GEICO General Ins. Co. v. Bottini, 93 So.3d 476 (Fla. 2d DCA 2012) 5 State Farm Fire & Casualty Co. v. Palma, 555 So.2d 836 (Fla. 1990)

1

Richard M. Benrubi is the founding partner of The Law Office of Richard M. Benrubi, P.A. and of counsel to Rosenthal, Levy, Simon & Ryles in West Palm Beach, and has over 25 years experience representing and counseling individual and corporate clients in the areas of insurance coverage, insurance bad faith, personal injury and wrongful death. He has been a Board Certified Civil Trial Lawyer since 1995 and has been named a top Florida Lawyer annually since 2005.


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www.FloridaJusticeAssociation.org | May/June 2016 | 25


MASSTORTS

By Ben Martin and Matt Schultz

FILTERS & FRACTURES:

R

The Ongoing Saga of IVC Filterss

ay Rennell knew he was having a heart attack. Awoken in the dead of a cold November night by searing chest pain, he was, in a word, terrified. Would he make it to the phone to call 911? Would he survive the ambulance ride from his rural home to the nearest hospital more than 30 miles away? Luckily, he did both. And of course he was relieved when he arrived at the ER and was told that stents would be placed in short order, saving his life. The doctors rushed him to the cath lab to put in the stents. But there they discovered it was no heart attack at all. A few years earlier Ray had been laid up for several weeks after an accident. His doctors, fearing potential pulmonary emboli associated with forced inactivity, inserted a clot-catching filter in his inferior vena cava, which carries venous blood from the lower body to the heart. Ray now carried within him an IVC filter, a cage-like device with spidery legs that anchor into the vein. Surely his doctors had thought this IVC filter a protective, perhaps life-saving, device. Instead, it nearly cost Ray his life. And it may still. Back in the cath lab Ray was told that his chest pains were caused by pericarditis—swelling of the membrane surrounding his heart. The cause? A small metal shard had pierced his right ventricle. CT scans revealed that his IVC filter had fractured. Two of the spider’s “legs” had migrated from the implant location and one had lodged in his heart. Open heart surgery was the only option, but the doctors feared Ray would not survive the surgery even if they were able to extract the strut from the wall of his heart. So they left it alone, and the strut remains there today, a constant source of pain and anxiety. Ray’s doctors are now exploring whether they can safely remove the remnants of the broken filter left in his IVC before further fracture occurs. Ray is not alone. Filter fractures are but one of the many problems that have come to light with IVC filters. Increasingly popular over the past decade, hundreds of thousands of IVC filters have been 26 | May/June 2016 | www.FloridaJusticeAssociation.org

implanted. Many now are found to be tilted inside the vein, to have migrated from the implant spot, or to have perforated and pierced the inferior vena cava, threatening damage to surrounding organs and vessels. Indeed, scientific study now reveals that retrievable IVC filters may actually cause pulmonary emboli—the very harm they were intended to address. The FDA reported in 2010 that 2,000 IVC filters had been used in 1979. By 2007 that number had jumped to 167,000, and FDA projected 259,000 would be implanted in the year 2012. It is (un)safe to say that more than a million filters are now embedded throughout America. Time bombs ticking away. The FDA expressed concern in its 2010 report that temporary, retrievable filters were “not always removed once a patient’s risk for PE subsides,” and it noted long term risks including “lower limb deep vein thrombosis (DVT), filter fracture, filter migration, filter embolization, and IVC perforation.” It recommended that physicians consider removal as soon as the risk for PE subsided. It reiterated these concerns in 2014. While it was thought that IVC filters might have saved some lives, it is now unclear whether they have ever actually saved any. We now know that, at the very least, they carry great risks. The public’s awareness of the risks seems to grow by the day. Unfortunately, for many that awareness comes with a diagnosis of filter fracture. With so many potential negative outcomes litigation was inevitable, and it is now under way. To date it has focused on devices of particular concern by two manufacturers: Cook and Bard. Cook Filters & the Cook MDL Filters designed for permanent placement had been around for decades, but the race to develop a retrievable filter began in the early 2000s. Cook’s Gunther Tulip, with a hook at the top, was the obvious leader of the pack; doctors had been retrieving it off-label as soon as they saw it had a hook to grab. But it lost the race to Bard, coming to


market a few months after Bard’s Recovery filter. Both filters appeared by way of the controversial 510(k) process. Under federal regulation 510(k) a medical device manufacturer can skip rigorous product testing otherwise necessary for approval. The manufacturer need only fill out a short form, tell the FDA there is a substantially equivalent device already being sold, get fast-track clearance, and in short order the devices find their way into the human body. Cook’s Gunther Tulip, initially cleared for permanent use only, was given the go-ahead for retrieval in 2003. The Tulip, used up until then as a permanent filter, would soon carry an indication that it could be retrieved without any time limitation at all. But the Tulip had never been proven to be safely retrievable after implantation for even two weeks. This problem was well-known by Cook before the Tulip was ever cleared for use as a retrievable device. In 2001 physicians in Canada had studied the Tulip for its retrievability. The most that study would prove is that the device had been retrieved safely when in the body for an average of 9 days. Now it would be marketed to doctors and put in patients as if it had an unlimited window of retrieval. The first retrievability study following its new indication for that use showed that 16 percent of Gunther Tulip filters wouldn’t budge after an average placement period of just 34 days. Tulip filters were embedding themselves in the veins of the patients they were meant to protect, some within days of implantation. Cook marketed its filter as infinitely retrievable. The 2004 study showed Cook was wrong, and it was not the last to do so. A 2007 study showed Tulips proved irretrievable one out of every five times. Seven percent more required a separate attempt to get the filters out. Cook’s Tulip was failing on first attempt at retrieval close to 30 percent of the time. By the end of the study its authors were “excit[ed]” by the development of a new Cook retrievable filter—the Celect—presumably as a cure to the “stuck filter” problem. The Cook Celect was introduced in 2007; but it was no cure for the Tulip’s ills, or those of its victims. The Celect also became embedded. Doctors were creating imaginative ways of removing the Cook filters and began to write about them. They couldn’t get them out with the Cook retrieval device sold for that purpose. There were numerous reports of both the Tulip and Celect filters breaking apart, migrating from their intended position, perforating the vena cava, and penetrating organs and other vessels. By 2009 enough Cook IVC filters had been put into humans that an insurmountable body of evidence had mounted against them. The embedded filter problem had become a disaster. In 2012, a devastating article was released: “Perforation of the IVC: Rule Rather Than The Exception After Longer Indwelling Times for the Gunther Tulip and Celect Retrievable Filters.” If the title alone was not disturbing for Cook and for doctors using Cook products, its content certainly was. The study showed 86 percent of Cook retrievable filters perforated the vena cava within a short period of time and estimated that if left in long enough all Cook filters would fail: “All filters imaged after 71 days showed some degree of vena caval perforation, often as a progressive process.” A study published one year later showed only two percent of Greenfield filters perforated while “[a] trend of increasing perforation rates with longer indwelling time was observed for the Celect and Gunther Tulip filters.” Despite all, Cook continues to market its filters.

In August, 2014, all Cook IVC Filter cases were consolidated in MDL 2570 by the Judicial Panel for Multi-district Litigation, and the case was assigned to the Southern District of Indiana, with Judge Richard Young presiding. There are more than 400 cases on file with more to come. Trials are expected to begin in early 2017. Bard Filters & the Bard MDL C.R. Bard may be familiar to many readers as a manufacturer of transvaginal mesh. It also produced a number of IVC filters at the center of its own multidistrict litigation, including the Bard Recovery Filter, the Bard G2 and G2X filters and its Eclipse, Meridian, and Denali filters. Their story is eerily similar to Cook. By the time the Bard Recovery filter came on the market in 2004, sales already were picking up in the IVC filter industry. Permanent IVC filter sales had been a steady but relatively unimpressive 50,000 or so up through the early 2000s. Once Cook’s Gunther Tulip and Bard’s Recovery filters became available, sales began to skyrocket. By 2008 around 150,000 filters were being sold in the U.S. every year and that number exceeded 250,000 by 2012. Bard and Cook had been right. Doctors loved the fact that they could insert a filter that could be left in the body for good or safely taken out at any time. The package insert said so. No problem, right? Not so fast. The short life of the Recovery was troubled from its inception. There had been no clinical trials showing that it was safe or that it saved lives (remember this was a 510(k) device). Accounts of it breaking apart and pieces of the Recovery filter migrating throughout the body were being reported. Studies would confirm these reports in alarming numbers later; but studies take time to conduct and even more time to publish. Bard needed no studies, however. Internal documents recently made public show that Bard knew all of this early on. It had begun work then to develop a replacement for the Recovery, which it must have known was doomed. This began the strategy Bard would systematically employ on filter recipients for the next ten years: It would simply put a new filter on the market when its predecessor failed. When the next one failed it would do it all again. From 2004 until the development of its current filter in 2013, Bard sold and pulled from the market in this order: the Recovery filter, the G2, the G2 Express, the Eclipse and the Meridian—all because of safety problems. Studies on the G2, possibly a filter even worse than its predecessor, showed that one of every eight G2 filters was going to break apart after implant. Bard left the G2 on the market until the next one was ready to go just like it had the Recovery before it. No matter what Bard seemed to do, when it built a new retrievable filter it became a safety nightmare. The filters broke. They moved. They pierced the vena cava. They damaged adjacent organs and vessels. A 2010 study of 80 patients with Bard filters concluded “[t] he Bard Recovery and Bard G2 filters had high prevalences of fracture and embolization, with potentially life-threatening sequelae.” A 2014 retrospective study reviewed CT scans at a single institution from 2000 to 2011. IVC penetration was observed in 86 percent of Bard’s G2/G2X filters and in 100 percent of its Eclipse filters. After eleven years on the market only one Bard retrievable filter is left: the Denali. Though touted as “innovative” with a “completely new design,” the Denali filter suffers the same failings as its predecessors—it lacks any long-term study showing that it is safe to remain in place for any significant length of time. And given the fact that more than half of “retrievable” filters are never removed, no one can fully predict the future health crisis for filter recipients, whether they have a Bard or Cook. www.FloridaJusticeAssociation.org | May/June 2016 | 27


MASSTORTS 2015 was a rough year for Bard. In July the FDA sent Bard a warning letter stating that its “Recovery Cone” filter retrieval system (still in use today) was manufactured “without marketing clearance or approval, in violation of the [Food, Drug and Cosmetic] Act.” The FDA also cited Bard’s “[f ]ailure to establish and maintain procedures for receiving, reviewing, and evaluating complaints.” In one example, a fractured G2 filter that embolized to a person’s lung “was filed as a malfunction Medical Device Report [MDR] and should have been filed as a death.” On top of this, two nationally televised NBC news pieces blasted both the Recovery filter and the G2. Stanford physician William Kuo, who has written extensively about the dangers of IVC filters (a doctor with the unenviable task of extracting embedded and fractured filters), told NBC both filters should have been recalled and that the Recovery filter was never safe. And 2015 saw Bard lose its battle to avoid an MDL, which now sits in Phoenix, Arizona, before Judge David Campbell. Case Selection Not every case involves symptomatic injuries. A filter may have tilted, embedded, perforated the vein, or even fractured, without any pain or other symptoms. Generally speaking, a case is worth evaluating if it meets the following criteria:

- - -

A Cook, Bard, or unknown retrievable filter implanted in or after 2003 A diagnosis of filter tilt, embedding (endothelialization), perforation, migration, or fracture; or A failed attempt to retrieve the filter.

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28 | May/June 2016 | www.FloridaJusticeAssociation.org

Many firms will evaluate “product in place,” (no-known-injury) cases by identifying the filter and recommending CT or other imaging to check the status of the filter. The Cook and Bard filters involved in current litigation include:

- - - - - - -

Cook Gunther Tulip Cook Celect and Celect Platinum Bard Recovery Bard G2, G2 Express, and G2X Bard Eclipse Bard Meridian Bard Denali

There is no current MDL litigation against other manufacturers, but lawsuits have been filed against Cordis and Rex Medical/Argon concerning their filters (which include, for example, the Optease, Trapease, Option, and Option Elite filters). Be aware that IVC filter cases can present limitations challenges. First, the injuries may be progressive. For example, a client may have learned years ago that their filter had tilted or perforated the IVC, but is unaware, or has only recently learned, that the filter has fractured. Second, clients may be aware that they have suffered a filter-related problem but not appreciate the possibility that it was due to product defect or negligence. There also are repose considerations for filters implanted when retrievable filters first came to market in the early 2000s. What’s Next? The word is getting out on Cook and Bard filters. And surely more concerning facts will be revealed through litigation. Unfortunately these revelations come too late for thousands of people now literally stuck with IVC filters—filters that eventually will cause more of the harms already suffered by so many over the past several years. How many filters have failed? How many more will fail in the future? And how will Cook and Bard finally resolve these issues? Only time will tell. A modified version of this article previously appeared in The Trial Lawyer Magazine. BEN C. MARTIN

is a trial attorney based in Dallas, Texas. He serves as plaintiffs’ co-lead counsel in the Cook IVC Filter MDL and is on the plaintiffs’ steering committee of the Bard IVC filter MDL.

Matt Schultz

Mr. Schultz is a shareholder at Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. in Pensacola. Matt heads up the firm’s IVC litigation department and is a member of the Cook MDL plaintiff’s steering committee.


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MEDICALMALPRACTICE

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EDICAL

ALPRACTICE

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irst District affirms dismissal with prejudice based on plaintiff’s failure to comply with medical malpractice presuit discovery. Morris v. Muniz, So.3d , 41 FLW D1010 (Fla. 1st DCA 4-27-16). The trial court dismissed this medical malpractice case on the grounds that the plaintiff had “repeatedly ignored requests for presuit discovery regarding her presuit expert’s statutory qualifications,” failed to timely respond to a subpoena duces tecum about the expert’s background and opinions, and failed to comply with the trial court’s limited discovery order. The trial court held that because the plaintiff did not engage in a reasonable presuit investigation, the record did not support a finding that the plaintiff’s presuit expert was qualified. The trial court also held that the plaintiff had intentionally deprived the defendant of the opportunity to meaningfully participate in presuit discovery. The First District Court of Appeals affirmed. It was not clear from the majority opinion exactly what information the plaintiff failed to provide, particularly in light of Judge Swanson’s dissenting opinion, in which he stated that the expert’s affidavit clearly established on its face that she was qualified under the statutes. According to the dissent, “that should have been the end of the matter,” but the defendants “used court-ordered limited discovery to go on a fishing expedition in an attempt to impeach” the expert’s qualifications, including taking the expert’s deposition. Apparently the trial court had expressed doubt whether the expert could have been actively practicing medicine, as the affidavit stated, while she was also earning a master’s degree and a law degree. However, the dissent argued, the trial court “was not permitted to make credibility determinations concerning an otherwise unrebutted and facially sufficient affidavit,” but was required to consider all factual allegations in the light most favorable to the plaintiff. In regard to the trial court’s limited discovery order, the dissent questioned whether defendants should have been permitted to engage in such discovery at all, given the clear allegations in the affidavit. 30 | May/June 2016 | www.FloridaJusticeAssociation.org

by Scott R. McMillen & Allison McMillen

Fifth District finds trial court improperly set trial before case was at issue, grants writ of mandamus. Melbourne HMA, LLC v. Schoof, So.3d , 41 FLW D994 (Fla. 5th DCA 4-19-16). The original plaintiff in a medical malpractice case died after the case was set for an April 2016 trial docket. When a second amended complaint was filed converting the case to a wrongful death claim by the personal representative, the trial court kept the case on the docket over the defendant’s objections. The Fifth District Court of Appeal granted a writ of mandamus, finding that the trial court had deviated from Florida Rule of Civil Procedure 1.440 by setting the case for trial before it was properly at issue. The Fifth DCA explained that under that rule’s strict requirements, if no motions are directed at the last pleading filed, then a case is at issue 20 days after the service of the last pleading. In this case, the last pleading had been the plaintiff’s March 14, 2016, reply to the answer and affirmative defenses. If the plaintiff had filed an immediate notice for trial once the case was at issue, the soonest the trial court could have set the trial under Rule 1.440 would have been 30 days after that, on May 4, 2016. Therefore, the Fifth DCA directed that the case be removed from the docket. Third District partially affirms order of attorney fees as sanction for defendant doctor’s repeated misconduct. Public Health Trust of Miami-Dade County v. Denson, So.3d , 41 FLW S929 (Fla. 3d DCA 4-13-16). This medical malpractice case against a doctor and the public health trust finally went to trial twelve and a half years after suit was filed. During the trial, the defendant doctor discussed the case with a witness outside the courtroom near jurors, as well as discussing it with another witness and defense counsel in the restroom, where a juror overheard. The trial court declared a mistrial, but denied without prejudice the plaintiff’s motion for sanctions. The following year, a shortage of potential jurors caused a second mistrial in the case, and the


case went to trial a third time a year after that. After the third trial, the plaintiff renewed the motion for sanctions, seeking fees for the twelve and a half years spent litigating before the first trial, and for the time spent preparing for and during each of the three trials. The trial court found that the defendant doctor had shown a pattern of behavior reflecting disregard for and disrespect to the court, and granted the motion for all the fees sought except those related to the second trial. The Third District Court of Appeal affirmed in part and reversed in part. It found that the award of sanctions was proper, noting that the trial court has the inherent power to sanction parties apart from any statute or rule specifically providing for sanctions. However, the 3d DCA found, the plaintiff was only entitled to fees for the time spent preparing for and conducting the first trial, because any other fees were not incurred as a direct result of the misconduct at issue. Fifth District certifies conflict with Fourth District on issue of post-appeal interest under Florida Rule of Appellate Procedure 9.340(c). Shoemaker v. Sliger, So.3d , 41 FLW D894 (Fla. 5th DCA 4-8-16). The Fifth District Court of Appeal certified conflict between its February 12, 2016, decision in Shoemaker (previously reported in the March-April edition of this column) and the Fourth District’s decision in Hyundai Motor Co. v. Ferayorni, 876 So.2d 680 (Fla. 4th DCA 2004). Second District holds plaintiff is bound by assertion in presuit notice regarding when she knew of possible negligence; affirms dismissal

of medical malpractice case based on statute of limitations. Bove v. Naples HMA, LLC, So.3d , 41 FLW D827 (Fla. 2d DCA 4-12016). A patient died from a retroperitoneal from alleged negligence during a bone marrow biopsy, and his wife was appointed personal representative of his estate. The day before the two-year anniversary of her husband’s death, the wife mailed a presuit notice of intent to sue to the hospital where the biopsy took place, and the hospital received the notice a week later. That notice specifically stated that the statute of limitations had begun to run on the date of the patient’s death, because that had been the date the family discovered the hospital’s negligence. Several months later, the wife filed a petition to extend the statute of limitations by ninety days, and after that, she served notices of intent on two doctors involved in the biopsy. After the wife eventually filed suit, the trial court granted all defendants’ motions to dismiss with prejudice, finding that the statute of limitations had expired before the complaint was filed. The Second District Court of Appeals affirmed. On appeal, the plaintiff argued that she had not learned of the possibility of negligence until she first met with her attorney five months after her husband’s death. The Second DCA noted that the fact the plaintiff had met with one of the defendant doctors less than two months after the death to discuss what had happened during the biopsy suggested she might have suspected negligence then. However, the Second DCA held, it did not need to make such a finding, because the plaintiff was bound by the assertion in her notice of intent that she knew of the negligence on the date of death. The plaintiff also argued that the notice of intent sent to the hospital had tolled the statute of limitations

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MEDICALMALPRACTICE

for all potential defendants, and her subsequent petition and presuit notices to other defendants made the complaint timely. The Court also rejected this argument, holding that the statute of limitations is tolled on the date presuit notice is received by the defendant, and not the date it is mailed by the plaintiff. Therefore, the Court found, the plaintiff’s notice had been received by the hospital several days too late.

that could not be remedied on plenary appeal, but did not establish a departure from the essential requirements of the law. The Court also wrote to emphasize that rule 4-1.5(f )(4)(B) requires the trial court to ascertain whether the client petitioning for a fee greater than the one in the rule understands her rights. The better practice, according to the Court, is to make that determination after an evidentiary hearing.

Second District denies petition for certiorari based on trial court’s denial of petition to approve 40 percent contingency fee. Mahany v. Wright’s Healthcare & Rehabilitation Center, So.3d , 41 FLW D830 (Fla. 2d DCA 4-1-2016). The personal representative of an estate settled a negligence claim against the defendant rehabilitation center before suit was ever filed. (It was not clear from the opinion whether this case was technically one for nursing home negligence, medical malpractice, or something else.) Apparently, the plaintiff filed a complaint against the rehabilitation center despite the settlement. The plaintiff’s attorney then wrote to the trial court, explaining that the case had already been settled, and asking the court to grant an attached petition for approval of an attorney fee contract providing for a 40 percent attorney’s fee. Without holding a hearing, the trial court denied the petition and a motion for reconsideration, and the plaintiff appealed. The Second District held that the trial court’s order was not a partial final judgment since it did not pertain in any way to the defendant, and converted the direct appeal to a petition for writ of certiorari. The Second DCA found that the plaintiff alleged a harm

Scott R. McMillen

Mr. McMillen is the founder of McMillen Law Firm, P.A, with a principal office in Orlando and satellite offices around the state and in Atlanta, Georgia. He is currently a member of Florida Bar Board of Governors, and a past President of the Central Florida Trial Lawyers Association, The Orange County Bar Association and The Legal Aid Society of the Orange County Bar Association. Mr. McMillen has been representing medical negligence victims throughout Florida and Georgia for nearly 30 years.

Allison McMillen

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

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www.FloridaJusticeAssociation.org | May/June 2016 | 33


PRODUCTSLIABILITY

TALCUM POWDER: Link to Ovarian Cancer

By Adam J. Langino and Theodore J. Leopold

M

s. Jackie Fox died of ovarian cancer in 2015. She was only 62. Like many, Ms. Fox used Johnson & Johnson’s (“J&J”) Baby Powder and other talcum based products for years as a daily feminine hygiene product. Believing her ovarian cancer developed as a direct result and claiming J&J knew that talcum powder causes ovarian cancer, but hid the dangers, her family sued the company. This past February, a jury in St. Louis, Missouri agreed and awarded the family $72 million in damages, of which $62 million were punitive. In April, another family tried their claim against J&J under similar circumstances, and the jury returned a verdict of $55 million. So, how did we get here? Talcum or “Talc” is a very soft mineral that is mined from the earth and is made up mainly of the elements magnesium, silicon, and oxygen. Talcum powder is made from talc. It is widely used in cosmetic products such as baby and adult body powders because it absorbs moisture well and helps keep skin dry. In the late 1890s, Johnson & Johnson first started to sell baby powder with talcum as an ingredient. Almost a century later, in 1971, a doctor named W.J. Henderson began studying the association between talc and ovarian cancer. His study was the first to discuss an association between the two which discovered talc particles deeply embedded in 10 of 13 ovarian tumors. During the next decade, The Lancet, a British Medical Journal, published a series of letters and editorials further examining the link between talc and cancer.

34 | May/June 2016 | www.FloridaJusticeAssociation.org

In 1982, the first talc/ovarian cancer epidemiological study was performed by Dr. Daniel Cramer, who is presently a Professor of Epidemiology at Harvard’s T.H. Chan School of Public Health and a Professor of Obstetrics, Gynecology, and Reproductive Biology at Harvard’s Medical School. That study found a statistically significant increase risk of ovarian cancer in women who reported using talcum based powders for feminine hygiene. After that study was published, J&J sent its doctors to meet with Dr. Cramer in attempt to downplay the risks that were uncovered. Dr. Cramer was not dissuaded and urged J&J to warn its consumers about the risks associated with its product. J&J refused to do so. In the years to come, the scientific community would continue to examine the relationship between talc and ovarian cancer. By 1986, documents found through discovery show that J&J internally expressed concerns about its talc products, admitting that its safety has been a concern amongst health professionals. In 1992, the National Toxicology Program conducted a study on the effects of talc inhalation on rats. That study showed clear evidence of carcinogenicity activity. That same year a study sponsored by the National Cancer Institute concluded, in part, that a lifetime pattern of talc use may increase the risk of ovarian cancer.


Because of the safety concerns raised by the scientific community, by 1992, J&J’s talc powder based products began to decline in sales. To counter, in August of 1992, J&J decided to increase its sales by targeting African American and Hispanic women. J&J marketing studies had demonstrated these ethnicities used powder products at higher rates. Despite the growing science supporting a link between talc use and cancer, J&J decided to increase the marketing of its product. Throughout the 1990s, scientific studies continued to show a link between cancer and talc powder use. By 1994, Dr. Samuel Epstein, Chairman of the Cancer Prevention Coalition, wrote J&J requesting it to withdraw its talc products from the market or, at a minimum, warn users of its risks. Around this time, other industries started declining to use talc with their products. In 1995, the condom industry voluntarily elected to stop dusting condoms with talc due to their concern of the increase risk of ovarian cancer. Two years later, in 1997, J&J’s paid consultant Toxicologist, Dr. Wehner, wrote an internal memorandum stating that anybody that denies talc can cause ovarian cancer, is taking a risk “that the talc industry will be perceived by the public as it perceives the cigarette industry – denying the obvious in the face of all evidence to the contrary.” As time went on, the scientific community continued to establish the link between ovarian cancer and talc powder use. For instance, by 2005, the International Agency for the Research of Cancer (IARC), which is part of the World Health Organization, voted to declare perineal use of “cosmetic grade talc a group B carcinogen.”

powder use and that an estimated 2,500 women will die within the next year as a result of talc use. Despite all of the above, and much more, Johnson & Johnson refuses to admit that talcum powder products may increase the risk of ovarian cancer and continues to deprive consumers of the opportunity to make an educated decision about whether to use its powder products. It is this denial – despite decades of scientific evidence – that led juries to conclude that Johnson & Johnson should be held accountable and ultimately resulted in verdicts in excess of $125 million. Adam J Langino

is an Associate with Cohen Milstein Sellers & Toll, and a member of the firm’s Catastrophic Injury & Wrongful Death, Managed Care Abuse, and Unsafe & Defective Products practice groups. Prior to joining Cohen Milstein in 2014, Mr. Langino was an Associate at Leopold Law and also served for three years as an Assistant Public Defender in West Palm Beach, FL. Mr. Langino attended the University of Maryland, graduating magna cum laude with Honors in Government and Politics, and earned a J.D., cum laude, from the University of Minnesota School of Law. He is an active member in the Palm Beach County Bar Association, the Board of the Florida Justice Association Young Lawyer Section, and the AAJ Membership Oversight Committee.

Theodore J. Leopold

is a partner at Cohen Milstein Sellers & Toll PLLC, has a national practice specializing in consumer justice litigation with a focus on complex products liability, managed care, catastrophic injury, automotive crashworthiness, wrongful death and class action litigation. For many consecutive years, Mr. Leopold has been profiled in The Best Lawyers in America. His work has been featured in the National Law Journal’s Top Cases of the year and he was nominated for “Trial Lawyer of the Year” by the Public Justice Foundation for his ground breaking litigation involving the managed care industry.

Expert testimony at the Fox trial revealed that at least 45,000 women have died as a result of ovarian cancer that could be attributed to talcum

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www.FloridaJusticeAssociation.org | May/June 2016 | 35


WORKERS’COMPENSATION

RECENT CASES by Michael J. Winer

R

EASONABLE FEES RETURN – AND WITH IT THE RIGHT OF INJURED WORKERS TO HAVE THEIR VOICES HEARD IN COURT.

If you have been following this column at all, not only are you a glutton for punishment, but you are also likely now aware of the draconian fee restrictions unique to workers’ compensation. Up until recently, even a medical malpractice plaintiff can waive the constitutional fee restrictions in order to pay the attorney of their choice a reasonable fee to represent them. However, workers’ compensation remained a different species altogether. Carriers allow the free market economy and the reasonableness requirements of the Rules Regulating the Florida Bar to govern fees they pay to the defense. Meanwhile, the claimant side was stuck with a legislative scheme under which the attorney is limited to a fee based solely on the value of benefits secured, no matter how laborious, difficult or time consuming the task to obtain said benefit (or how tenuous or tenacious the defense). These fees are paid by carriers to the victorious claimant only when they wrongfully deny claims. Fees are 20 percent of the first $5,000 in benefits; 15 percent of the next $5,000 in benefits; and either 10 percent or 5 percent of additional benefits, depending on the length of time involved. For example, in Kauffman v. Community Inclusions, Inc., 57 So. 3d 919 (Fla. 1st DCA 2011), the judge (JCC) ruled that injured worker Jennifer Kauffman should receive $3,417 in benefits after a dispute with her employer and its insurance company. Kauffman’s lawyers worked over 100 hours on the case, but the fee limits restricted the amount they could be paid to $684 – or $6.84 an hour. While the judge in that case awarded that amount, he also wrote that reasonable fees would be $250 an hour, or $25,000. The defense, enjoying no limitations on what it could pay its lawyer, paid over $14,000 for its lawyer to perform over 125 hours of work on the file. It does not take a rocket scientist to know that this ruling had a chilling effect on an injured workers’ ability to obtain counsel in future cases. Armed with the knowledge of the outcome of this case, lawyers were 36 | May/June 2016 | www.FloridaJusticeAssociation.org

OF NOTE

turning down these types of cases en masse and carriers were denying benefits. Instead of industry paying for the work related injury, society was paying, whether through Medicaid, health insurance, or by going to county hospitals. As explained by the Florida Supreme Court nearly 50 years ago, “the workmen’s compensation law was intended to provide a direct, informal and inexpensive method of relieving society of the burden of caring for injured workmen and to place the responsibility on the industry served.” Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla. 1960). The law was designed to protect workers and their dependents against the hardships that arise from the workers’ injury or death arising out of employment and occurring during employment, and to prevent those who depend on the workers’ wages from becoming charges on the community. The law operates to place the burden for such misfortunes upon industry. McCoy v. Florida Power & Light Co., 87 So.2d 809 (Fla. 1956). However, the operation of the workers’ compensation fee schedule served to frustrate this very purpose. Armed with the knowledge that a claimant cannot get a lawyer, carriers were denying claims with impunity, secure in the fact that the injured worker will not be able to obtain counsel to fight his claim for benefits and even more cocksure that the unrepresented claimant has a “snowball’s” chance of successfully navigating the complex workers’ comp system on his own and winning the case.1 This was a system that bore absolutely no rational relationship to its stated purpose and one that divested injured workers of their fundamental constitutional rights to free speech and to contract.

Finally, after six years of injured workers suffering from the one sided effects of this unjust and manifestly unfair law, the Florida Supreme Court provided some much needed relief. In Castellanos v. Next Door Company, the Florida Supreme Court invalidated the mandatory attorney fee schedule (guideline) found in F.S. §440.34(2009), finding that it unconstitutionally creates an irrebuttable presumption that precludes any consideration of whether the fee award is reasonable. Although the claimant alleged the fee limitations offended numerous constitutional grounds, the court based its ruling solely on a due process analysis.


What were the facts in Castellanos? In 2009, Marvin Castellanos suffered an injury during the course of his employment. Next Door authorized him to seek treatment at the Physician’s Health Center. At the clinic, Castellanos was diagnosed with multiple contusions to his head, neck, and right shoulder. A doctor requested authorization of medically necessary treatment, including xrays, medications, and physical therapy. Next Door, as the employer, and Amerisure, as Next Door’s insurance carrier (collectively, the “E/C”), failed to authorize its own doctor’s recommendations, and Castellanos subsequently filed a petition for benefits, seeking a compensability determination for temporary total or partial disability benefits, along with costs and attorney’s fees. The E/C filed a response to the petition, denying the claim based on §§440.09(4) (intentional acts) and 440.105(4)(b)9. (fraud), Florida Statutes (2009), ultimately asserting that Castellanos was responsible for his own injuries. The parties subsequently filed a stipulation, in which the E/C raised twelve defenses. A final hearing was then held before the JCC in which numerous depositions, exhibits, and live testimony were submitted for consideration. In the Final Compensation Order, the JCC determined that Castellanos was entitled to be compensated by the E/C for his injuries and was therefore entitled to recover attorney’s fees and costs from the E/C. The JCC explicitly found that Castellanos’ attorney was successful in securing compensability and defeating all of the E/C’s defenses, and retained jurisdiction to determine the amount of the attorney’s fee award. Based on the JCC’s finding of compensability, Castellanos filed a motion for attorney’s fees, seeking an hourly fee of $350 for the services of his attorney. Section 440.34, however, strictly constrains an award of attorney’s fees to the claimant’s attorney, requiring the fee to be calculated in conformance with the amount of benefits obtained. The JCC heard testimony from other claimant attorneys regarding the reasonableness (or lack thereof ) of the fee, but under the law could not award anything other than guideline fee of $164.54, or $1.53 per hour based upon the asserted hours. How did the Supreme Court decide that the prior law was unconstitutional? The Supreme Court’s 38-page majority opinion notes that reasonable prevailing party attorney fees “has been a critical feature of the workers’ compensation law since 1941.” From its outset, the workers’ compensation law was designed to assure, as the current legislative statement of purpose provides, “the quick and efficient delivery of disability and medical benefits to an injured worker.” §440.015, Fla. Stat. (2009). Yet, while the Legislature has continued to enunciate this purpose, in reality, the workers’ compensation system has become increasingly complex to the detriment of the claimant, who depends on the assistance of a competent attorney to navigate the thicket. Indeed, as this Court long ago observed, allowing a claimant to “engage competent legal assistance” actually “discourages the carrier from unnecessarily resisting claims” and encourages attorneys to undertake representation in nonfrivolous claims, “realizing that a reasonable fee will be paid for [their] labor.” Ohio Cas. Grp. v. Parrish, 350 So.2d 466, 470 (Fla. 1977).

The Court reasoned that it is “undeniable” that without the right to an attorney with a reasonable fee, the workers’ compensation law can no longer “assure the quick and efficient delivery of disability and medical benefits to an injured worker,” as is the stated legislative intent in §440.015, Florida Statutes (2009), nor can it provide workers with “full medical care and wage-loss payments for total or partial disability regardless of fault and without the delay and uncertainty of tort litigation.” Martinez v. Scanlan, 582 So.2d 1167, 1172 (Fla. 1991). The Court held that the statute is unconstitutional under both the state and federal constitutions as a violation of due process. The core of the opinion deals with the fee schedule’s creation of an irrebuttable presumption and finds that the 2009 law failed to pass a three part test for constitutionality of conclusive statutory presumptions. The analysis of the three part test is lengthy, but it addresses examination of the legislature’s identification of a problem, whether there is a reasonable basis that the law would fix the problem, and whether the expense and difficulty of individual determinations justify the imprecision of a conclusive presumption. The Supreme Court last examined this issue in the workers’compensation case of Recchi v. Hall in 1997, finding that the law prohibiting an injured worker under a drug free workplace from rebutting the presumption of intoxication was an impermissible irrebuttable presumption. What is “facially unconstitutional” versus “as applied” ? The Court ruled the current version of F.S. §440.34 is facially unconstitutional. That means that this ruling applies for all claimants in all cases. “As applied” pertains to “this litigant in this case only.” The finding of facial unconstitutionality makes this applicable across the board. So what does this mean for workers’ compensation attorney fees? This holding operates to revive the version of §440.34 analyzed by the Supreme Court in Murray v. Mariner Health, 994 So.2d 1051, 105758 (Fla. 2008). JCCs must now, in any pending case where fee entitlement is alleged, allow the claimant to present evidence that the fee schedule will result in an unreasonable fee. The Court specifically emphasized that “the fee schedule remains the starting point, and that the revival of the predecessor statute does not mean the claimant attorneys will receive a windfall.” Claimant attorneys will only be able to qualify for a fee deviating from the fee schedule where they show the guideline is unreasonable under the Lee Engineering factors. What does this mean for the injured workers? This is the proverbial key to help unlock the courthouse doors for the hardest working citizens in our state. Now, when a carrier wrongfully denies a claim, the claimant can get an attorney and if they prevail, his attorney can be awarded a reasonable fee What are the chances this gets “fixed” by the legislature in a special session? The legislature, after the Murray decision in 2008, wasted no time in “tweaking” (by removing the word “reasonable” from) §440.34 to address the issue noted by the Murray Court. The difference in this opinion is that the Court has essentially stated that the legislature CANNOT eliminate reasonable fees, since such fees are part of the grand bargain: www.FloridaJusticeAssociation.org | May/June 2016 | 37


WORKERS’COMPENSATION

“It is undeniable that without the right to an attorney with a reasonable fee, the workers’ compensation law can no longer “assure the quick and efficient delivery of disability and medical benefits to an injured worker,” as is the stated legislative intent in section 440.015, Florida Statutes (2009), nor can it provide workers with ‘full medical care and wageloss payments for total or partial disability regardless of fault and without the delay and uncertainty of tort litigation.’ Martinez v. Scanlan, 582 So.2d 1167, 1172 (Fla. 1991).” The Court is saying that the Florida and Federal constitutions guarantee the right of injured workers to obtain reasonable fees. The legislature can try to address this however they want, but this opinion seems to be written to make that difficult, to say the least. http://www.floridasupremecourt.org/decisions/2016/sc132082.pdf The recent success in the Courts was not limited to the Castellanos decision, which implicated only those fees paid by the carriers. Just one week earlier, the First District Court of Appeal concluded in an as applied constitutional challenge to §§440.105 and 440.34 that the restrictions in those sections are unconstitutional violations of a claimant’s right to free speech, free association, petition, and right to form contracts, and held “that the criminal penalties of section 440.105(3)(c), Florida Statutes, are unenforceable against an attorney representing a workers’ compensation client seeking to obtain benefits under chapter 440, as limited by other provisions.” See Miles v. City of Edgewater Police Dep’t, No. 1D150165, at 25 (Fla. 1st DCA 4-20-16). The issue of the constitutionality of that provision was not before the Florida Supreme Court in Castellanos so that decision now stands on its own as a vehicle for reasonable fees paid by the claimant himself (or his Union). For those of you not familiar with the workers’ compensation fee schedule and other restrictions, a brief anecdote might help to better understand the complete absurdity of what we practitioners have been dealing with for the past 13 years. … A client walks into his prospective attorney’s office with a retainer check for $500 for two hours of time to discuss various issues and the following exchange occurs: Client: Hello Mr. Attorney, thanks for seeing me for a few hours today, I have many problems to discuss. Attorney: Well, you’ve come to the right place. Just hand me that $500 check and let’s get started. Client: Hands $500 check to attorney who then promptly hands it over to his bookkeeper who deposits it at the bank. Mr. Attorney, I need to talk about my a possible divorce. Attorney: OK, I can help. Attorney proceeds to give advice and explain family law. Client: Mr. Attorney, I also have a problem with a possible social security issue and an auto accident case. Attorney: OK, I can help. Attorney proceeds to give more quality advice and explain the law on the topics of social security and auto accidents too. Client: Mr. Attorney, I also have a problem with some insurance related issues from that auto accident and property damage questions. Attorney: OK, I can help. Attorney proceeds to give more 38 | May/June 2016 | www.FloridaJusticeAssociation.org

quality advice about insurance and explain the law this. Client: Mr. Attorney, I should also mention that during that auto accident, I was working and had three of my employees in the car with me and they are filing work comp claims against my business.… I just don’t know what to do! Attorney: No problem … but things are getting more complicated and taking more time. How about another $500 retainer so we can spend another two hours talking? Client hands over another check and attorney proceeds to give more quality advice and explain the law on workers’ compensation from an employer’s perspective. Client: Mr. Attorney, I am so glad to have you help me. One last thing, as you know I was injured in the auto accident as well. I don’t have any health insurance and the PIP benefits under my auto policy were used up in the ER. I’m a covered employee under my workers’ comp policy and I’d like to get treatment through the work comp system for my injuries since they occurred in the course of my employment. Attorney: Hold it right there. Don’t say another word. I can’t help you with that. Client: Why not? I trust you. I need your advice. Attorney: Because it’s a crime for me to take even a penny from you to give you advice on your work comp case without getting approval from the JCC. I have to secure a benefit for you in order to ask the judge if I can be paid. Client: You mean your advice is not a benefit to me? I would certainly feel like you benefitted me if you advised me on my case! How about my Union? I am a member and they will pay for your time and advice. Attorney: Sorry, I can’t do it. Client: You mean not even my Union can pay you for your time to give me advice? Attorney: Nope. Can’t do it. Client: But can you advise me on the claims my employees are making against my company? Attorney: Sure, I can help you with that. There’s no limitation at all on what an employer or insurance company can pay its lawyer. We are going to charge you $5,000 to advise on those cases. Client: Great, here’s another check. Now, about my work comp case? Attorney: STOP!! I can’t help you with that. Client: Dude, you’re weird. I’m going elsewhere. Where else could such a bizarre exchange occur? Not in any other area of the law does a client have such a muzzle on his first amendment rights to free speech. Remember, included in the First Amendment’s fundamental guarantee of freedom of speech, association, and to petition for redress of grievances, is the right to hire and consult an attorney. See United Mine Workers of America, District 12 v. Illinois State Bar Association, 389 U.S. 217 (1967). Even a medical malpractice plaintiff could waive the constitutional fee restrictions in order to pay the attorney of their choice a reasonable fee to represent them. However, workers’ compensation remained a different species altogether, where the carrier allows the free market economy and the Florida Bar to regulate fees for the defense bar while the claimant side is stuck with a legislative scheme that bears absolutely no rational relationship to


www.FloridaJusticeAssociation.org | May/June 2016 | 39


WORKERS’COMPENSATION

its stated purpose and divests injured workers of their fundamental constitutional right to free speech and to contract. 2 So it was against this real life injustice and absurdity that the Miles case was presented. In Miles, a law enforcement officer alleged exposure to chemicals related to methamphetamine production, which resulted in her becoming disabled on August 3, 2011. The second petition alleged she was exposed to an intense smell that prevented her from conducting any further investigation regarding a shoplifting case. The police department rejected both of her claims without any supporting evidence. She then entered into two retainer agreements. The agreement with the Fraternal Order of Police (FOP) provided that the FOP would pay the Firm a flat fee of $1,500 to represent the claimant. In the retainer agreement signed by claimant, she stated she understood the $1,500 fee paid by the FOP would not be “sufficient compensation” if the Firm expended more than 15 hours representing her; accordingly, claimant agreed to pay her attorney an hourly fee for all attorney time expended beyond 15 hours. The JCC denied the motion for approval of those fees, and the attorney withdrew but then appeared as “an observer” at the final hearing in which the claimant appeared Pro Se. The claimant renewed her request that the JCC approve the retainer agreements which would allow her, and the FOP on her behalf, to retain the Firm to represent her. The JCC again advised that the Workers’ Compensation Law does not permit payment of noncontingent hourly attorney’s fees. Without medical evidence to support her toxic exposure claim or the help of a lawyer, the result was predictable.... the claimant lost. At the hearing the prior attorney presented six affidavits of claimant attorneys stating that they would not accept the case due to the complexity of the matter and the fee limitations in the Florida statutes. The JCC denied the claimant’s motion to admit those affidavits and denied her claim as well. The First DCA started with the premise that “[laypersons] cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries.” Bhd. of R.R. Trainmen v. Va. ex rel. Va. State Bar, 377 U.S. 1, 7 (1964). The Court reversed, ruling that the restrictions in §§440.105 and 440.34, when applied to a claimant’s ability to retain counsel under a contract that calls for the payment of a reasonable fee by a claimant (or someone on his or her behalf ), are unconstitutional violations of a claimant’s rights to free speech, free association, and petition and are not permissible time, place, or manner restrictions on those rights. They further ruled those provisions also represent unconstitutional violations of a claimant’s right to form contracts and are not permissible police power restrictions on those rights. Finally, they held that the criminal penalties of §440.105(3)(c), Florida Statutes, are unenforceable against an attorney representing a workers’ compensation client. The Court stated that there is “no reason why a workers’ compensation claimant should not be able to waive a limitation on claimant attorney’s fees and agree to pay her attorney with her own (or someone else’s) funds, subject to a JCC’s finding that the fee is reasonable.” The Court reasoned that none of the justifications for the fee restrictions advance the State’s interest in regulating attorney’s fees to protect the amount of benefits a claimant is awarded, as the statutes do not actually prevent a public harm. To the contrary, as claimant 40 | May/June 2016 | www.FloridaJusticeAssociation.org

established, the statutes actually operated to discourage attorneys from representing her, thus potentially placing the burden for any allegedly compensable injury or condition, which might normally be borne by the E/C, on the public as a whole, if claimant is forced to access governmental benefits. Thus, the statutes cannot be reasonably read to prevent a public harm. https://edca.1dca.org/ DCADocs/2015/0165/150165_1287_04202016_022330_i.pdf Miles states that: “Additionally, any fee agreement ‘must nonetheless, like all fees for Florida attorneys, comport with the factors set forth in Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454, 458 (Fla.1968), and codified in the Rules Regulating The Florida Bar at rule 41.5(b).’ Jacobson, 113 So.3d at 1052.” The strong language is clear: ALL FEES MUST BE REASONABLE. Without question, the decision in Miles has paved the way for clients to sign waivers of the fee protections afforded under §440.34. However, approval of any fee must be submitted to the JCC, who must decide if a fee is reasonable. The effect of these cases was lambasted by “industry” as being all about fees and greedy trial lawyers. It is not that. Rather, the Castellanos and Miles cases are about the injured worker and his or her ability to retain counsel to vindicate important legal rights within the workers’ compensation system. In Castellanos, the court cited the First District’s previous case stating that, especially in a “lengthy and expensive contest” with an E/C, a claimant proceeding “without the aid of competent counsel” would be as “helpless as a turtle on its back.” Davis v. Keeto, Inc., 463 So.2d 368, 371 (Fla. 1st DCA 1985). In Miles, the Court led with the premise that “[laypersons] cannot be expected to know how to protect their rights when dealing with practiced and carefully counseled adversaries.” See Bhd. of R.R. Trainmen v. Va. ex rel. Va. State Bar, 377 U.S. 1, 7 (1964). The landmark decisions in these two cases assure the rights of injured workers in this state to secure counsel, who is free from the conflict of interest associated with an unreasonably low fee, to help them access the meager pool of benefits available. These cases are about justice and a level playing field. These cases are about allowing those who work hardest and need legal help the most being able to get that help. ________ 1 The complexity of the workers’ compensation system was recently recognized by the First DCA in Bysczynski v. United Parcel Services, Inc., 53 So. 3d 328 (Fla.1st DCA 2010), where the court observed that “This case illustrates the complex nature of Florida’s current Workers’ Compensation Law, and the myriad of thorny legal and medical issues which accompany even the most fundamental decisions regarding an injured worker’s entitlement to, and a carrier’s liability for, medical treatment.” 2 There are separate justifications for restrictions on claimant paid fees versus carrier paid fees, neither of which bear any rational basis to the purpose for the same. Section 440.34 purports to be founded upon three legitimate interests as it pertains to fees paid by claimants. The first is the regulation of attorneys’ fees in general. See Samaha v. State of Florida, 389 So. 2d 639 (Fla. 1980). The second is to lower the overall cost of the worker’s compensation system, a purpose endorsed by the Florida Supreme Court in connection with past reductions in


benefits See Acosta v. Kraco, Inc., 471 So.2d 24 (Fla. 1985). The third is to protect injured workers. See Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So. 2d 506, 510 (Fla. 1st DCA 2006).

The legislative purpose behind the shifting of fee responsibility to the carrier for carrier paid fees is different and traces its roots to nearly 70 years ago, and is one that still exists today, namely to encourage employers and carriers to pay valid claims in a timely manner so as to achieve the legislative intent of “quick and efficient delivery of disability and medical benefits to an injured worker.” §440.015, Fla. Stat. (2009); See Great American Indemnity Co. v. Smith, 24 So. 2d 42, 44 (Fla. 1945) (pointing out that §440.34 was amended in 1941 to provide for the assessment of attorneys’ fees if the E/C declined to pay a claim within a stated time or resisted unsuccessfully such payment); Ohio Casualty Group v. Parrish, 350 So. 2d 466, 470 (Fla. 1977) (noting that “Section 440.34, Fla. Stat. (1975), was enacted to enable an injured employee who has not received an equitable compensation award to engage competent legal assistance and, in addition, to penalize a recalcitrant employer.”) True as it was 60 plus years ago, it still rings true today that this purpose can only be achieved if the E/C has an incentive (avoidance of potentially costly attorney’s fees as a result of extensive litigation) to provide benefits timely. See Sam Rogers Enterprises v. Williams,

401 So.2d 1388 (Fla. 1st DCA 1981). A irrefutable adherence to a “guideline” fee, as mandated by the DCA in Kaufmann, without regard to the circumstances of the case, frustrates that purpose and promotes a “chilling effect” on the claimant’s right to obtain legal services. The irrefutable presumption of a guideline fee does absolutely nothing, except in larger value cases, to encourage employers and carriers to pay valid claims in a timely manner so as to achieve the legislative intent of “quick and efficient delivery of disability and medical benefits to an injured worker. This is inconsistent with the benevolent purposes of the Workers’ Compensation Act.” See Rivero v. SCA Services of Florida, Inc., 488 So.2d 873, 876 (Fla. 1st DCA 1986).

Michael J. Winer of The Law Office of Michael J. Winer, P.A. practices in the areas of plaintiff’s workers’ compensation and appeals, personal injury, insurance disputes, and business litigation. Since 2002, Mr. Winer has been Board Certified in Workers’ Compensation Law, having been recertified in 2007.

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www.CharlesWRanson.com www.FloridaJusticeAssociation.org | May/June 2016 | 41


EVIDENCE

MUDDY OF DAUBERTVILLE by Matt Schultz

T

he blues had a baby and they named it … Daubert. Two cases “Deep Down in Florida” have raised some interesting issues at the crossroads of lay opinion and pure expert opinion. I thought the hard cases made bad law; when easy ones do so these are “Hard Days” indeed. The first case, R.C. v. State, So.3d , 41 FLW D662 (Fla. 2d DCA 3-11-16), involved a deputy’s search of defendant’s school bag, which revealed “a leafy substance and a blue pipe” after the deputy already had smelled a “strong odor of burnt marijuana emitting from [defendant’s] person.” (Alas, a bottle of Dom Perignon would have made for the perfect “Champagne & Reefer” allusion!) But the reefer alone was enough and defendant was charged. He moved in limine under Daubert to exclude the deputy from testifying that he could “detect cannabis.” At the motion hearing the deputy cited his law enforcement training, subsequent education in controlled substances, professional experience dealing with marijuana, and the fact he had testified more than 100 times regarding his recognition of substances like marijuana. He ultimately testified that he identified the substance at issue as marijuana “based on his training and experience.” Defendant argued this did not satisfy Daubert’s reliability standard. The trial court admitted the testimony saying it was “based on [the deputy’s] training and experience; not based on a scientific test. Based on training and experience.” The court continued, “He’s giving a lay opinion. He’s not giving an expert opinion.” Defendant was convicted. Defendant appealed, which was quite reasonable given 90.701(2), which says lay opinion is proper only if “the opinions and inferences do not require a special knowledge, skill, experience, or training,” and given 90.702, which allows expert testimony from one qualified “by knowledge, skill, experience, training, or education . ...” Defendant argued this was expert opinion and pure opinion at that, rather than “’facts or data’ based on reliable principles and methods” as required under the Daubert standard. Well, “Blow Wind Blow.” 42 | May/June 2016 | www.FloridaJusticeAssociation.org

The Second DCA acknowledged everything necessary for defendant to prevail, but managed to affirm the conviction. It discussed the new Daubert standard, noting that “pure opinion testimony, i.e., testimony based only on the personal experience and training of the expert is no longer admissible.” It recognized that Daubert applies not only to scientific testimony but to testimony based on any technical or specialized knowledge. It then explained that before the 2013 Daubert amendment, “the identification of marijuana by nonscientific means was a settled issue in the Florida courts,” which is rather beside the point in a post-Daubert world. And it concluded the adoption of the Daubert standard “has not changed the long-established rule that lay persons can identify marijuana … based on their personal experience and knowledge. Such testimony is not admitted based on scientific expertise but instead based on the layman’s training and experience….” In the span of two sentences the court conflated “personal experience and knowledge” (which is fair game for lay opinion) and a “layman’s training and experience” (which is nonsensical in the light of 90.701(2), which says lay opinion may not be based on specialized training or experience). This testimony indisputably was “based only on the personal experience and training” of the deputy, as both the trial and appellate courts freely acknowledged. But seeing as this is the definition of “pure opinion” quoted by the DCA itself, it would be inadmissible were the deputy recognized as an expert. It could support the conviction only as lay opinion; so lay opinion it would be. It’s a “Low Down Dirty Shame,” because under 90.701(2), lay opinion may not be premised upon “special … experience or training.” (Is it too soon to reiterate the trial court’s conclusion this was based on “training and experience,” or the DCA’s characterization of it as a “layman’s training and experience?”) The DCA was betwixt and between. It either had to characterize the deputy’s testimony as lay opinion (impermissibly based on special training and experience) or to


characterize it as expert opinion and admit it is textbook pure opinion now inadmissible under the Daubert standard. Perhaps best would have been to disregard the deputy’s “training” altogether and admit this evidence based on the average layman’s experience with the sight and smell of marijuana (as opposed to “special experience” forbidden under the lay opinion rule); but applying that rationale would set a dangerous precedent for more obscure or esoteric drugs. How many laypeople can identify methamphetamine by smell or differentiate between powder cocaine and powder heroin merely by looking at them? See, e.g., Brooks v. State, 762 So.2d 879, 891-93 (Fla. 2000) (affirming trial court’s qualification of drug dealer as an expert qualified under 90.702 to identify crack cocaine). The R.C. court’s confusion might be forgiven in light of all the prior cases that discuss such evidence without differentiating between expert and lay opinion, or which treat it as one or the other with little analysis. But it didn’t try hard to get it right. R.C. cited Pama v. State, 552 So.2d 309 (Fla. 2d DCA 1989), as support for a deputy’s ability to identify drugs without scientific testing, but it failed to mention that Pama involved testimony by one “who was qualified as an expert in the identification of marijuana.” Likewise, it cited a First Circuit opinion as proof that, even after Daubert, federal courts “have long-allowed lay testimony to identify illicit substances;” but it failed to note that the decision involved the sentencing phase of a criminal trial where “[t]he Federal Rules of Evidence do not pertain” and “the sentencing court may consider evidence that would be inadmissible at trial as long as that evidence possesses ‘sufficient indicia of reliability’….” U.S. v. Robinson, 144 F.3d 104 (1st Cir. 1988). Worst of all, it cited Robinson v. State, 702 A.2d 741 (Md. 1997) to support admission of “lay testimony to identify illicit substances;” but Robinson was disapproved in a subsequent decision, which rejected as lay opinion the testimony of law enforcement officers who received specialized training of precisely the sort involved in R.C. See Ragland v. State, 870 A.2d 609, 725-26 (Md. 2005) (“This testimony cannot be described as lay opinion. These witnesses had devoted considerable time to the study of the drug trade.”); see also id. n.7 (disapproving Robinson v. State, which is cited by the R.C. court). Maybe it’s just my “Mean Disposition,” but I think it a “Sad, Sad Day” indeed when a Florida appellate court reaches a dubious result by citing overruled authorities. So you know I was “Screamin’ and Cryin’” when the Third DCA came out a few weeks later with L.L. v. State, 2016 WL 1357736 (Fla. 3d DCA Apr. 6, 2016). The court framed the issue narrowly: “[w] hether a police officer’s identification of marijuana, arrived at by sight and smell alone, is admissible experience-based opinion testimony.” It held that “because the officer’s opinion was based on his personal

knowledge and perception and resulted from a process of everyday reasoning [it was] admissible as lay opinion testimony.” The procedural history is similar to R.C. in that it involved a Daubert challenge to nonscientific drug-identification testimony. The prosecutor elicited testimony regarding the officer’s “field expertise and training” but did not tender him as an expert. The officer testified that he approached defendant’s car and smelled “a strong odor of marijuana.” He asked defendant if there were drugs in the car and defendant admitted he had marijuana, handing over a bag from the console. The bag was produced at trial and the officer identified its contents as marijuana, noting that defendant admitted it was marijuana and that it had a strong smell unique to marijuana based on his “field experience.” On cross he testified repeatedly in response to Daubert-based questions that his identification was “just based on my experience and based on my senses.” On appeal “[t]he parties focused primarily on Section 90.702” governing expert testimony. The Third DCA, like the Second, discussed Daubert and the bar on pure opinion testimony. It found the subject testimony was “more appropriately analyzed under Section 90.701.” Defendant argued that the testimony could not qualify because it constituted “specialized knowledge” barred by 90.701(2). The Third DCA gave a lengthy analysis rejecting this position. It began by saying that all lay witnesses have some “specialized knowledge,” and it referred to the federal counterpart rule, which differs from Florida’s. The Florida rule allows lay opinion if “the opinions and inferences do not require a special knowledge, skill, experience, or training.” The federal rule allows a lay opinion if it is “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702” (i.e., clarifying that “specialized knowledge” equates to “expert” opinion under 702). The Third DCA then makes a great and unnecessary leap, stating “the question is not whether the opinion requires specialized knowledge, as all opinion testimony does, but whether the specialized knowledge is sufficiently specialized to fall within the scope of Section 90.702.” That simply is not found in the Florida rule. Indeed, the absence of that language is the very thing distinguishing the Florida rule from the federal rule. A case might be made to interpret “special knowledge,” etc. in this fashion; but it cannot be accomplished simply by declaring that the 702 language in the federal applies to the Florida rule, which has never been amended to include it. The court is also mistaken in asserting that “all” opinion testimony requires specialized knowledge— as we just saw, the Florida rule expressly forbids lay opinion based on special knowledge, etc. What it permits are inferences and opinions when it is not possible to convey the facts without them. For example, several months ago while sitting at my desk, I heard a crashing sound www.FloridaJusticeAssociation.org | May/June 2016 | 43


EVIDENCE on the street below and looked out to see a man lying in front of a truck in the middle of the intersection. I did not see the truck hit the man; but I certainly would be permitted to testify to that inference in court without any “special” knowledge unique to me. Similarly, when precise speeds are not a critical fact, a lay witness may opine on approximate speeds and distances. Lewek v. State, 702 So.2d 527, 532 (Fla. 4th DCA 1997). Those lay opinions require no “special” knowledge beyond the ken of the average adult American. This premise is flawed, but it is necessary to the Third DCA’s ultimate goal of distinguishing “special” in the rule from extra-702-special, which it more or less invents in the opinion. But maybe “Everything’s Gonna Be Alright.” Despite these missteps, the core logic of the Third DCA’s analysis is sound. Quoting Edward Imwinkelried, the court says that “the real basis for distinguishing between lay and expert opinion testimony is whether the opinion rests in part on vicarious experience .… the classification should turn on the experiential basis of the opinion rather than the witness’s occupation. If a patrol officer proffered the opinion based solely on his or her personal observation of that type of crime, the opinion should be categorized as lay.” (“Trouble No More!”) The Third DCA focuses on the officer’s experience, concluding his opinion “is based solely on his personal, firsthand knowledge and what he perceived” and applied a “process of reasoning familiar to everyday life. … A lay witness, however experienced, offers no methodology beyond ordinary reasoning.” So the Third DCA in L.L. managed to avoid the special knowledgetraining/pure opinion trap that ensnared the Second DCA in R.C. It did so by refusing to rely on the officer’s specialized education and training (which the Second DCA lamentably labeled “layman’s training”) and by emphasizing the experiential basis for the opinion coupled with an “everyday” reasoning process. Why, then, did the Third DCA essentially rewrite section 90.701 to reach this result? It could have ruled the same way based on the plain language of the Florida rule. A clue may be found in the court’s continuing analysis (an unnecessary dictum in this simple marijuana case): “even if the trier of fact does not have the personal experience necessary to identify the substance in question, the reasoning process is not ‘foreign in kind,’” and would therefore qualify as lay opinion. The average adult can identify marijuana and perhaps even its odor, but probably not cocaine or PCP. A court might consider testimony identifying such drugs as requiring “special” knowledge disqualifying it as lay opinion under Florida law. But once the Florida rule is retooled to mirror the federal rule and the authorities interpreting it, then even matters beyond the average adult’s understanding can be labeled lay opinion if not too special (“sufficiently specialized” said the court), and so long as the “reasoning process” is a familiar one. Of course, another way to achieve a similar result would be for the supreme court to reject the Daubert amendment and allow easy cases like L.L. to be decided as lay opinion cases while cases requiring more “special” knowledge, training, etc., could be based on pure opinion under 702. Until then, to quote our friend Muddy one last time, “I Can’t be Satisfied.”

44 | May/June 2016 | www.FloridaJusticeAssociation.org

TRIAL NOTEBOOK: Hearsay Exceptions – Excited Utterance (§ 803(2)) The provisions of §90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness: (2) EXCITED UTTERANCE.—A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. •

• •

Excited utterances are deemed trustworthy because they are made when the declarant “has not had an opportunity to engage in reflective thought . …” Ehrhardt, Fla. Evidence §803.2 at 100203 (2015). The declarant need not be a party and need not testify. Id. at 1003. The excited state “may exist a significant length of time after the event.” The length of time is only one factor to consider. Others include the declarant’s age and physical/mental condition, the nature of the event, and the subject matter of the statement. Id. at 1004-05. Excited utterances may overlap with spontaneous statements (§803(1)) but spontaneous statements require a contemporaneity between the event and the statement that is not necessary with excited utterances. Id. at 1008-09. On the other hand, excited utterances require a startling event while spontaneous statements do not.

The federal counterpart is Fed. R. Evid. 803(2) (“Excited Utterance”). CASELAW: “The factors to be analyzed in determining whether a statement qualifies ... are: (a) the time gap between the incident and the statement, (b) the voluntariness of the statement, (c) whether the statement is selfserving, and (d) the declarant’s mental and physical state at the time the statement was made.... Where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.” Sunn v. Colonial Penn Ins. Co., 556 So.2d 1156, 1157-58 (Fla. 3d DCA 1990) (internal quotation/citations omitted) Statements made an hour after an accident qualified as excited utterances where declarant was in the emergency room awaiting surgery because declarant was “still experiencing the trauma of the events.” Nat’l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So.2d 840, 843 (Fla. 1st DCA 2000). Statements to police officer 20 minutes after an alleged battery did not qualify as excited utterances because there “was ample time for [declarant] to engage in a reflective thought process, and the record is otherwise devoid of any indication that she remained under the stress of the alleged event and had not regained her composure by the time she spoke to the deputy.” Merritt v. Crosby, 893 So.2d 598, 600 (Fla. 1st DCA 2005).


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EVIDENCE The excited utterance exception requires “an event startling enough to cause nervous excitement.” Phillips v. State, 816 So.2d 161, 163 (Fla. 3d DCA 2002). The proponent of the evidence has the burden to establish the prerequisites for admissibility. See, e.g., Browne v. State, 132 So.3d 312, 317 (Fla. 4th DCA 2014). RECENT CASES OF INTEREST NOTE: Recent cases may not be released for publication. “Representative evidence” (statistical evidence) may be used to show predominance of common questions of law or fact. In this donning/doffing FLSA case, the district court certified a class based on representative evidence on the number of additional hours each employee worked: “[A] representative or statistical sample, like all evidence, is a means to establish or defend against liability” depending “on the degree to which the evidence is reliable in proving or disproving the elements” of the claims at issue. Notably, the defendant had failed to maintain adequate records of its own. Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036, 2016 WL 1092414 (3-22-16). Responses to questions and statements of identification may satisfy the spontaneous statement exception to the hearsay rule. JacksonJohnson v. State, 41 FLW D866, 2016 WL 1357319 at *5 (Fla. 4th DCA 4-6-16). Witness is not allowed to offer a lay opinion that surveillance video shows defendant concealing a firearm under his shirt. Because “it is impossible to definitely identify what [defendant] is holding in the video played for the jury” and because the officer “was not qualified as a certified forensic technician [and] did not testify to any specialized training in video identification” his testimony “constituted impermissible lay opinion that invaded the province of the jury to interpret the video.” Seymour v. State, 41 FLW D670, 2016 WL 1039158 at *2 (Fla. 4th DCA 3-16-16). Recorded conversations may be admissible where party recorded had no expectation of privacy. Defendant was suspected of stealing money from the cell phone store where she worked. Her employer interviewed her in the public sales area during regular business hours under the scrutiny of security cameras “not hidden in any manner.” The Second DCA reversed suppression of the statements. F.S. 934.06 states that whenever wire or oral communications are intercepted in violation of the act, they may not be used as evidence. However, for an oral conversation to be protected, “the speaker must have an actual subjective expectation of privacy, along with a societal recognition that the expectation is reasonable.” Under the circumstances of the case, defendant had no reasonable expectation that her statements would not be intercepted. State v. Caraballo, 41 FLW D641, 2016 WL 886538 (Fla. 2d DCA Mar. 9, 2016) (quoting State v. Smith 641 So.2d 849, 852 (Fla. 1994)). For the last time: Don’t “tender” your witness as an expert or ask the court to declare their expertise! “While this court and others have repeated the recommendation that trial courts ought to refrain from directly declaring the expert status of a witness in front of the 46 | May/June 2016 | www.FloridaJusticeAssociation.org

jury, we recognize this has been interpreted by some as merely a suggestion of judicial practice, and not a hard-and-fast rule. Today we clarify that such practice is impermissible. Judges must not use their position of authority to establish or bolster the credibility of certain trial witnesses.” Osorio v. State, 41 FLW D547, 2016 WL 803515 (Fla. 4th DCA 3-2-16). Trial court properly struck summary judgment affidavit by expert that was “permeated by improper legal conclusions.” As I discussed in an earlier FJA Evidence Column (“Getting in Your Rules of the Road Evidence,” Issue #583 March/April 2015), Florida law clearly allows expert testimony on custom, policy, practice, and procedure as relevant evidence on the standard of care. But different---and not allowed---is an expert affidavit offering “pure legal conclusion.” In this case an architect’s affidavit “contain[ed] a discussion of the purpose behind the Code, and the legal conclusions that ‘[defendant], the tenant, had an equitable interest in the premises and had a duty to ensure the safety of the premises, and it’s [sic] compliance with Code mandated structural standards.’ [The] affidavit went on to interpret the scope of [defendant’s] duty and concluded that [it] breached its legal duty.” The trial court was affirmed in striking it. Fuentes v. Sandel, Inc., 41 FLW D753, 2016 WL 1126562 at *5-6 (Fla. 3d DCA 3-23-16). As a matter of first impression, a promissory note is not hearsay. Citing a number of non-Florida authorities, the Fifth DCA concluded a promissory note “is admissible for its independent legal significance— to establish the existence of the contractual relationship and the rights and obligations of the parties to the note, regardless of the truth of any assertions made in the document.” The cited authorities suggest the same result for contracts, wills, and other “signed instruments.” Deutsche Bank Nat. Trust Co. v. Alaqua Prop., 41 FLW D994, 2016 WL 1600421 at *3 (Fla. 5th DCA 4-22-16). Identification of an individual in a surveillance video is admissible lay opinion. Where victim and LEO had “multiple interactions” with defendant, they were in a better position than jurors to identify the defendant in a surveillance video and it was proper to admit their lay opinions in this regard. The decision also notes that lay opinion may identify persons heard on recordings. Quaknine v. State, 41 FLW D915, 2016 WL 1445596 at *1 (Fla. 4th DCA 4-13-16). Physician’s assistant is not qualified to opine on the need for future surgery. The trial court abused its discretion in permitting a PA to testify on the need for future surgery in a UM case where the PA testified he was not authorized to independently diagnose the need for surgery in a clinical setting. However, the PA “was certainly qualified to testify [as an expert] regarding the treatment and care he provided.” State Farm Mut. Auto. Ins. Co. v. Long, 2016 WL 1600606, at *3 (Fla. 5th DCA 4-22-16). Technical admissions based on untimely RFA responses do not support dismissal where “the pleadings and/or record evidence contradicts the technical admissions and no prejudice has been demonstrated.” HSBC Bank USA v. Parodi, 2016 WL 2342824 (Fla. 3d DCA 5-4-16). Trial court erred by excluding biomechanical expert’s testimony on injury causation. Liability was admitted, and plaintiff presented


medical testimony that the accident caused her injury. Defendant presented a medical doctor who blamed a preexisting condition and sought to introduce the opinion of a biomechanical engineer/M.D. that the forces involved were too minimal to have caused the injury. Plaintiff made a Daubert challenge arguing that medical doctors do not use force analyses to reach causation opinions and the witness’s reliance on his biomechanical background created “a new type of expertise that had not been deemed reliable by the scientific community.” The court permitted him to testify to his force analysis and that the forces at play would not generally cause the injury plaintiff alleged; but it precluded any case-specific opinion. The court noted that biomechanical engineers are routinely permitted to testify to general causation of a given type of injury and that, as a medical doctor, the witness could “presumably” have given a case-specific injury opinion based on the history, records, etc. Notably, the court observed “It is also not unusual for doctors to rely on anecdotal evidence of the history and severity of an accident in rendering a causation opinion.” The biomechanical opinions proffered here were simply a more accurate version of those factors; thus it was admissible. Under the circumstances, the error was deemed harmless. Maines v. Fox, 41 FLW D1062 , 2016 WL 1741950 at *6 (Fla. 1st DCA 5-3-16).

Matters that may be judicially noticed require an advance request. “Nationstar states in a footnote that ‘it is well known, particularly among judges who preside over hundreds of foreclosure actions, that Aurora is the servicing arm of Lehman Brothers.’ This information might qualify for judicial notice.... However, we cannot take judicial notice of this ‘fact,’ nor can the trial court without a timely and otherwise sufficient request under section 90.203, Florida Statutes (2013).” Reynolds v. Nationstar Loan Services, LLC, 2016 WL 1688571 at *2 (Fla. 4th DCA 4-27-16).

Matt Schultz

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

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CIVILPROCEDURE

STATUTE OF LIMITATIONS

CLIENT BOUND BY LAWYER’S “ADMISSION” BY ROY D. WASSON A. Introduction: Although we lawyers speak for our clients and can bind our clients by the things we say in court (and out of court when we have express authority), a recent decision by the Second District Court of Appeal has held that a lawyer can bind his or her client in such a way as to lose the case because of a mistaken statement by the lawyer made out of court. On April Fools Day, in Bove v. Naples HMA, LLC, No. 2D15-1680; 2016 Fla. App. LEXIS 5047; 41 FLW D827 (Fla. 2d DCA 4-1-16), the court made fools out of the plaintiff and her attorneys by affirming the dismissal of the case with prejudice based on something said by one of her attorneys more than six months before the complaint was filed. The court in Bove held that the attorney’s notice of intent letter served in a medical malpractice case contained a forever-binding admission that the statute of limitations had run by the time the notice of intent was delivered to the defendants. The Bove decision is wrong on a variety of fronts. First, it wrongly holds that the out-of-court statement by the attorney constituted a judicial admission by the client which estopped her from taking a contrary position. Second, it mistakenly permitted the notice of intent to be used as evidence of a fact stated therein, when such notices are inadmissible. Next, it incorrectly held that the so-called admission could not be withdrawn and corrected, even though the defendant had not detrimentally relied thereon. Finally, the court mistakenly ignored the large body of law that stands for the proposition that the question of when the medical malpractice statute of limitations starts to run is usually a question of fact for the jury. This article will address those issues, while reminding our readers that things we write on behalf of our clients can have unintended and devastating consequences. B. The Bove Decision’s Ratio Decidendi: In Bove the plaintiff’s husband died following a bone marrow biopsy that resulted in a retroperitoneal bleed. His death occurred on February 26, 2012. The plaintiff first met with her attorney and learned of the possibility of malpractice in July of 2012. It was not until almost two years later, in February of 2014, that she received letters from two medical experts supporting her malpractice claim. Her attorney immediately sent out a notice of intent to initiate litigation, which was mailed prior to the expiration of two years from the patient’s death but not received until after two years from the date of death. In that notice, counsel stated that “the two (2) year timeframe [in which to initiate the lawsuit] would begin to run from the date of Mr. Bove’s death, as 48 | May/June 2016 | www.FloridaJusticeAssociation.org

this was the date the family and the estate of Mr. Bove discovered the negligence of the professionals in performing the bone marrow biopsy.” The complaint was timely filed within the period of the statutory extensions for which the plaintiff petitioned during the presuit period. The defendants moved to dismiss the complaint with prejudice based on the statute of limitations defense. That motion was granted. On appeal the Second District held as follows: While we can foresee circumstances in which the type of incident that Mr. Bove experienced – a retroperitoneal bleed--might not be the obvious result of medical negligence, Mrs. Bove is not entitled to relief under the facts of this case. This is because, in her notice of intent served on Physicians, her attorney acknowledged that on the date of Mr. Bove’s death (February 26, 2012), “the family and estate of Mr. Bove discovered the negligence of the professionals of Physicians Regional in performing the bone marrow biopsy.” Mrs. Bove argues that she should not be bound by her attorney’s statement in the notice of intent because it was not evidence. Indeed, she points to her own affidavit, which she filed in response to the appellees’ motions to dismiss, wherein she stated that she did not become aware of any possible medical malpractice until she met with her attorney in July 2012. But generally, parties are bound by the allegations in their pleadings, see Hart Props., Inc. v. Slack, 159 So.2d 236, 238 (Fla. 1963), and within the context of judicial proceedings, “litigants are not permitted to take inconsistent positions,” Federated Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So.2d 38, 41 (Fla. 1st DCA 1970). The fact that the notice of intent was not a pleading or that the judicial proceedings had not yet begun in this case is not dispositive. The service of the notice of intent was a statutory prerequisite to filing suit, and it contained factual allegations relied on by the parties. Consequently, Mrs. Bove was bound by the assertion contained within her notice of intent that she first became aware of the appellees’ possible negligence on February 26, 2012. As a result, Mrs. Bove was required to serve her notices of intent no later than February 26, 2014. 2016 Fla. App. LEXIS 5047 at ** 6-7 (emphasis added).


The court rejected the argument that the jury should have made the determination of when the plaintiff’s cause of action accrued, holding that “[t]he issue of whether Mrs. Bove should be bound by her [attorney’s] admission was one of law.” Id. at * 12. At press time of this article, a motion for rehearing en banc had been filed and was under consideration by the Second District. C. Counsel’s Mistaken Statement Should Not Have Estopped Client: The so-called “admission” by counsel as to when the statute of limitations started to run should not have been held to estop the plaintiff from correcting the mistake by other evidence. To begin with, the rule of estoppel to maintain inconsistent positions is not applicable “since this rule is not applicable unless the previous position was successfully maintained.” Olin’s, Inc. v. Avis Rental Car System of Fla., Inc., 104 So.2d 508, 511 (Fla. 1958)(emphasis added). Further, the defendants in Bove did not rely to their detriment on counsel’s statement about when the plaintiff learned of the reasonable possibility of malpractice. “[T]he rule of estoppel which forbids the successful assertion of inconsistent positions in litigation only applies where the inconsistent position first asserted was successfully asserted or where the party against whom the positions are asserted relied to its detriment on the earlier inconsistent position.” V.I.P Real Estate Corp. v. Florida Exec. Realty Mgmnt, 650 So.2d 199, 200 (Fla. 4th DCA 1995). Mrs. Bove’s counsel’s statement should not have been held to be an admission at all, much less one that forever estopped his client from establishing that the lawsuit was timely filed. The alleged admission was not contained in a pleading and there was no judicial proceeding pending at the time it was made. As recognized by the court, “generally, parties are bound by the allegations in their pleadings, see Hart Props., Inc. v. Slack, 159 So.2d 236, 238 (Fla. 1963), and within the context of judicial proceedings, ‘litigants are not permitted to take inconsistent positions.” Federated Mut. Implement & Hardware Ins. Co. v. Griffin, 237 So.2d 38, 41 (Fla. 1st DCA 1970).” Bove at ** 6-7. The court explained-away “[t]he fact that the notice of intent was not a pleading” and “that the judicial proceedings had not yet begun” when the attorney’s statement was made in the notice of intent by stating that “[t]he service of the notice of intent was a statutory prerequisite to filing suit.” Bove at *7. What the Second District overlooked in equating the notice of intent with a pleading (because it was required as a condition to filing a malpractice lawsuit) is that there is no requirement under Florida law that the notice of intent make any reference to when the plaintiff became aware of the reasonable possibility of malpractice. The alleged admission about when the cause of action accrued should have been recognized as mere surplusage in the notice, not as an integral part thereof. D. Counsel’s Statement In Notice of Intent Was Inadmissible: The statement of Mrs. Bove’s attorney as to when the cause of action accrued should not have been considered by the court for two other interrelated reasons as well: 1) that statement was an inadmissible, unsworn statement by an attorney who lacked personal knowledge of the fact, and 2) it was made in a notice of intent that is itself not competent evidence.

First, “[a] statement, discussion, written document, report, or other work product generated by the presuit screening process is not discoverable or admissible in any civil action for any purpose by the opposing party.” Section 766.106(5), Fla. Stat. The purpose of that rule of inadmissibility is stated by the Florida Supreme Court as follows: Indeed, the prevailing policy of this state relative to medical malpractice actions is to encourage the early settlement of meritorious claims and to screen out frivolous claims. See Williams, 588 So.2d at 983; Adventist Health System, 675 So.2d at 1052; see also Medical Malpractice Recommendations, in Report of the Academic Task Force for Review of the Insurance and Tort Systems 15 (1987) (providing the basis for chapter 88-1, Laws of Florida, and listing as its primary recommendation that “meritorious medical negligence claims should be distinguished from non-meritorious negligence claims at the earliest possible point”). This policy is best served by the free and open exchange of information during the presuit screening process. Likewise, the free and open exchange of information will more likely occur if the parties are assured of the confidentiality of the information at trial. See Grimshaw, 572 So.2d at 13. Cohen v. Dauphinee, 739 So.2d 68, 70-71 (Fla. 1999) (emphasis added). Second, unsworn statements by attorneys are not competent evidence in trial court proceedings. In Blimpie Capital Venture, Inc. v. Palms Plaza Partners, Ltd., 636 So.2d 838 (Fla. 1994), the court rejected the proposition that an attorney’s unsworn representation can establish a contested fact. That was a case in which the Appellant filed a motion for relief from a default judgment alleging that the default was entered as the result of fraud. That court held as follows: At the hearing on the motion, Blimpie failed to offer any evidence or testimony supporting its allegations of fraud. Instead, its attorney only presented argument interspersed with unsworn representations of fact. The attorney for Palms Plaza brought this shortcoming to the attention of the trial court by noting the absence of any factual basis to which he could respond. We conclude that the trial court was correct in denying the motion. As was held in Yu v. Weaver, 364 So.2d 539, 540 (Fla. 4th DCA 1978), such an “unsworn motion without more did not warrant vacating a prior final judgment which on its face appeared proper.” Moreover, this proof deficiency was not cured by the factual representations made by Blimpie’s attorney in the motion and at the hearing. We have held that, in the absence of a stipulation, a trial court cannot make a factual determination based on an attorney’s unsworn statements. State v. Brugman, 588 So.2d 279 (Fla. 2d DCA 1991). A trial court, as well as this court, is also precluded from considering as fact unproven statements documented only by an attorney. Schneider v. Currey, 584 So.2d 86 (Fla. 2d DCA 1991). See also Leon Shaffer Golnick

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CIVILPROCEDURE Advertising, Inc. v. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982) (“If the advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.”) Id. at 839. Thus, the Bove court erred in allowing consideration of the lawyer’s statement about when his client know of the reasonable possibility of malpractice. E. The Court Should Have Allowed Withdrawal of the Admission: Even if the mistaken statement by counsel were competent as an admission as to when the statute of limitations began to run, the Bove court’s decision flies in the face of countless cases holding that courts should freely grant relief from mistaken admissions. The court should have employed the analogous standard for granting withdrawal of an admission under Fla. R. Civ. P. 1.370, which “permit[s] withdrawal or amendment when the presentation of the merits of the action will be subserved by it and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining an action or defense on the merits.” One recent case from the Second District, like many others decided over the last several years, explains the public policy underlying the standard from granting relief from admissions that were made by mistake: This liberal standard for relief “reflects the strong preference that genuinely disputed claims be decided upon their merits rather than technical rules of default.” PennyMac Corp. v. Labeau, 180 So.3d 1216, 1219 (Fla. 3d DCA 2015) (citing Sterling v. City of West Palm Beach, 595 So.2d 284, 285 (Fla. 4th DCA 1992)). “The use of admissions obtained through a technicality should not form a basis to preclude adjudication of a legitimate claim.” Sterling, 595 So.2d at 285. Denial of relief from technical admissions is an abuse of discretion when the record contains evidence that contradicts the admissions and the opposing party has not shown it would be prejudiced by the withdrawal of the admissions. See PennyMac Corp., 180 So 3d at 1219-20; Wells Fargo Bank, N.A. v. Donaldson, 165 So.3d 40, 42 (Fla. 3d DCA 2015); Thomas v. Chase Manhattan Bank, 875 So.2d 758, 760 (Fla. 4th DCA 2004); Love v. AllisChalmers Corp., 362 So.2d 1037, 1038-39 (Fla. 4th DCA 1978). Wells Fargo Bank, N.A. v. Voorhees, No. 2D15-2055; 2016 Fla. App. LEXIS 7321 at * 6 (Fla. 2d DCA 2016). There was no possibility of any prejudice to the defendants from allowing the statute of limitations issue to be decided on the merits through evidence at trial. The Bove court should have allowed the admission to be withdrawn.

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F. Statute of Limitations Issues Constitute Jury Questions: Mrs. Bove opposed the defendants’ motion to dismiss based on the statute of limitations defense, referring “to her own affidavit, which she filed in response to the appellees’ motions to dismiss, wherein she stated that she did not become aware of any possible medical malpractice until she met with her attorney in July 2012.” That should have been sufficient to defeat the motion to dismiss. Florida Statutes establish a two-year limitations period for medical malpractice actions. “An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued.” § 95.11(4)(b), Fla. Stat. In Tanner v. Hartog, 618 So.2d 177, 181 (Fla. 1993), the Florida Supreme Court interpreted this section to mean that—in order to trigger the start of the statute of limitations in a medical malpractice case—there must be not only knowledge of the injury, but also knowledge of the reasonable possibility that the injury was caused by medical malpractice. Because questions of a party’s “knowledge” and what is “reasonable” usually are questions of fact for the jury, dismissal or summary judgment on the statute of limitations defense is rarely appropriate. The Tanner court recognized that its holding “will make it harder to decide as a matter of law when the statute begins to run and may often require a fact-finder to make that determination.” Id. at 182. As the Fifth District has held: “The determination of when a person knew or reasonably should have known with the exercise of due diligence of the possibility of medical negligence is generally a question of fact.” Thomas v. Lopez, 982 So.2d 64, 68 (Fla. 5th DCA 2008)(emphasis added). The fact that a plaintiff becomes aware of an injurious medical condition “is not the same thing as knowledge that there was a reasonable possibility” that the plaintiff was injured through the malpractice of a doctor. Cunningham v. Lowery, 724 So.2d 176, 178 (Fla. 5th DCA 1999). Further, more than a suspicion of malpractice is required to start the limitations period running. “Simply suspecting wrongdoing is not enough” when determining when the statute of limitations accrues. Thomas v. Lopez, 982 So.2d 64, 68 (Fla. 5th DCA 2008). Summary judgment or dismissal based on the statute of limitations defense should be denied where the medical complication or injury which follows treatment by a defendant doctor could have resulted in the absence of malpractice. For example, in Cascio v. St. Joseph’s Hosp., 734 So.2d 1099, 1100 (Fla. 2d DCA 1999), the court held that the issue of whether a patient should have known of the possibility of a hospital’s negligence upon a diagnosis of a condition was a question of fact where that condition was “one of the possible complications” from the procedure. The exercise of “due diligence” to ascertain whether malpractice has occurred does not require the courts to “impute sophisticated medical analysis to a lay person struggling with the fact of a crippling or horrifying illness.” Cunningham v. Lowery, 724 So.2d 176, 179 (Fla. 5th DCA 1999).


There was just such evidence of a non-negligent cause of the retroperitoneal bleed in the Bove case. “After the bleed was discovered, Mr. Bove was evaluated by another physician who concluded that the bleed was a co-morbid condition acting in conjunction with other underlying medical issues.” Therefore, dismissal was erroneous and the jury should have been allowed to decide when the statute of limitations began to run. CASE SUMMARIES IN CIVIL PROCEDURE Improper “Send a Message” Closing Argument. In reversing a judgment approaching $4 million, the Fourth District in R.J. Reynolds Tobacco Co. v. Gafney, No. 4D13-4358; 2016 Fla. App. LEXIS 4520 (Fla. 4th DCA 3-23-16) accepted the defendant’s arguments that the verdict was tainted by plaintiff’s counsel’s closing argument which included a “send a message” component and also improperly suggested that defense counsel were involved in Tobacco’s conspiracy to hide the addictive nature of cigarettes. Even though there was a punitive damage claim in Gafney, the court held that the following argument improperly asked the jury to send a message by its verdict on compensatory damages: “[Y]our verdict must speak loud and it must speak clear. And the truth your compensation verdict must speak is the amount of money it will take to compensate and equalize, balance the harm that has been done in this case.” (Emphasis added). Insurance Defense Counsel’s Billing Records Discoverable. In Paton v. GEICO General Ins. Co., No. SC14-282; 2016 Fla. LEXIS 631; 41 FLW S115 (Fla. 3-24-16), the Court held that the billing records of opposing counsel are relevant to the issue of reasonableness of time expended in a claim for attorney’s fees, and their discovery falls within the discretion of the trial court when the fees are contested. When a party files for attorney’s fees against an insurer pursuant to §§ 624.155 and 627.428, Fla. Stat., the billing records of the insurer are relevant. The hours expended by the attorneys for the insurer will demonstrate the complexity of the case along with the time expended, and may belie a claim that the number of hours spent by the plaintiff was unreasonable, or that the plaintiff is not entitled to a full lodestar computation, including a multiplying factor. Moreover, the entirety of the billing records are not privileged, and where the trial court specifically states that any privileged information may be redacted, the plaintiff should not be required to make an additional special showing to obtain the remaining relevant, nonprivileged information. Even if the amount of time spent defending a claim was privileged, this information would be available only from the defendant insurer, and the plaintiff has necessarily satisfied the second prong of the test delineated by Fla. R. Civ. P. 1.280(b)(4) for discovery of privileged information--i.e., the information or its substantial equivalent cannot be obtained by other means without undue hardship. Court Cannot Review Prior Complaint In Deciding Motion to Dismiss. Because review for the sufficiency of a complaint to state a cause of action was limited solely to the complaint at issue and its attachments, in Santiago v. Mauna Loa Investments, LLC, No. SC132194; 2016 Fla. LEXIS 552; 41 FLW S91 (Fla. 3-17-16), the Supreme Court held that the district court erred by looking outside the four corners of the complaint at issue to consider a separate complaint that had been dismissed before the trial court ruled on the complaint at issue.

Excusable Neglect Standard for Vacating Default Not Satisfied. In Santiago v. Mauna Loa Investments, LLC, No. SC13-2194; 2016 Fla. LEXIS 552; 41 FLW S91 (Fla. 3-17-16), the Court held that the trial court properly denied respondent’s motion to set aside the default judgment entered against it, as respondent had not shown excusable neglect for failing to respond timely to the complaint when its president, after making one call to her attorney’s office, took no further action to assure a timely response to the complaint was filed. Proposal For Settlement Need Not Mention Release or Dismissal. In Manuel Diaz Farms, Inc. v. Delgado, No. 3D15-86; 2016 Fla. App. LEXIS 7158 (Fla. 3d DCA 5-11-16), the Third District held that the trial court’s denial of attorney’s fees to appellant was improper; inclusion of terms regarding whether not a release would be provided was not required in the proposal for settlement submitted to appellee by appellant, and there was no basis in precedent, Fla. R. Civ. P 1.442 or §768.79, Fla. Stat. (2012) to support appellee’s argument that appellant’s amendments to its affirmative defenses after the proposal was submitted somehow mooted or otherwise vitiated a clear, timely, good faith, and straightforward proposal for settlement. Evidentiary Hearing Required On Motion to Vacate Default. In Richards v. Crowder, No. 4D15-4034; 2016 Fla. App. LEXIS 7079 (Fla. 4th DCA 5-10-16), the Fourth District held that the trial court abused its discretion in denying Richards’s motion for relief from judgment without first conducting an evidentiary hearing. The motion and supporting affidavits stated a claim of “colorable entitlement to relief,” which is sufficient to require an evidentiary hearing. Failure to Join Indispensable Party. The failure to join all partners in a lawsuit against another partner that will affect the absent partner’s interests requires dismissal, according to the court in GMI, LLC v. Asociacion del Futbol Argentino, No. 3D15-1678; 2016 Fla. App. LEXIS 6740 (Fla. 3d DCA 5-4-16). Even though the absent party could not be joined due to immunity from suit, that party was an indispensable party and the lawsuit could not proceed in its absence. _______________ Although the plaintiff’s attorney in Bove is also challenging on rehearing the Second District’s holding that a notice of intent must be received by the prospective defendant before the expiration of two years, not just mailed before two years has elapsed, that issue is not addressed in the present article. 1

Roy D. Wasson

is board certified in Appellate Practice with extensive courtroom experience in more than 600 appeals and thousands of trial court cases. He is an EAGLE Patron, a former member of the FJA board of directors, a Fellow of the Academy of Florida Trial Lawyers, a past chairman of the FJA Appellate Practice Section, and a member and past chair of the Amicus Curiae Committee. Roy is a recipient of the FJA Gold EAGLE, Silver EAGLE and Bronze EAGLE awards, th. Legislative Leadership Shoe Leather Award, and the S. Victor Tipton Award for Legal Writing. He has served as chair of The Florida Bar Appellate Court Rules Committee, its Appellate Certification Committee, and its Appellate Practice Section.

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CLOSINGARGUMENT

ATT ACKS ON OPPOSING COUNSEL O

f all the improper comments that can be made during closing argument, perhaps none raise the ire of appellate judges more than attacks on opposing counsel. Closing argument should be confined to the evidence presented at trial and the issues and inferences that may be drawn from such evidence. See, e.g., Rosario - Paredes v. J.C. Wrecker Serv., 975 So.2d 1205, 1208 (Fla. 5th DCA 2008). As such, It is improper for a lawyer to make a personal attack on the opposing lawyer during closing argument. In most cases, there would be no reason to make any comment, much less a personal attack, on the acts or omissions of opposing counsel. The lawyers are not on trial. Since the jury’s function is to resolve the factual dispute between the parties, an argument regarding the strategy motivation, truthfulness or honesty of a lawyer is immaterial to any issue in the case. The jury must decide only the factual issues, and the facts consist exclusively of the testimony of witnesses and the exhibits introduced during trial Philip J. Padovano, Florida Civil Practice §23:4 (2016 ed). Such arguments have been called “both contemptable and condemnable.” Johnnides v. Amoco Oil Co., Inc., 778 So.2d 443, 444 (Fla. 3d DCA 2001). These statements “are not acceptable and will not be condoned.” Rosario – Paredes, 975 So.2d at 1208. Personally attacking opposing counsel is an “improper tactic that can poison the mind of the jury.” Wicklow v. State, 43 So.3d 85, 87-88 (Fla. 4th DCA 2010). Further, as Judge Ciklin has stated: [A]d hominem attacks on one’s opposing counsel are anathema to the profession of lawyering. … Justice is not served when an officer of the court employs verbal tactics more appropriately found in reality television. We cannot have been clearer when previously warned that ‘it is never acceptable for one attorney to effectively impugn the integrity or credibility of opposing counsel before the jury.’ Coleman v. State, 126 So.3d 1199, 1208 (Fla. 4th DCA 2012) (Ciklin, J., concurring specially) (quoting Wicklow 43 So.3d at 88)). The Fourth District Court of Appeal recently and extensively addressed what it found to be improper attacks on opposing counsel in R.J. Reynolds Tobacco Co. v. Gafney, 2016 WL 1128480 (Fla. 4th DCA 52 | May/June 2016 | www.FloridaJusticeAssociation.org

2016). The court lamented that attacks on opposing counsel during closing argument has turned into a “persistent problem,” and quoted the Third District: [C]omments on the credibility of counsel, such as those at issue in this case, are recurring in closing arguments at an alarming rate. We caution counsel . . . to uphold their professional and ethical obligations and to be mindful of the line clearly established by the courts of this State. Gafney, at *6 (quoting Fagins v. State, 116 So.3d 569, 569 (Fla. 3d DCA 2013)). Gafney was an Engle progeny case which involved the question of whether or not the decedent was addicted to cigarettes containing nicotine. In addressing the question on the verdict form concerning this issue, plaintiff’s counsel stated: And this is an addiction case. It’s not a choice case. The word ‘choice’ isn’t in those jury instructions and it may be - the word “choice” isn’t in those jury instructions. The word ‘control’ isn’t in those jury instructions. What’s in those jury instructions are things about what addiction does and doesn’t do, and whether or not it makes a difference in the 20th Century, in the life of somebody like Frank Gafney. And, you know, it’s important for other reasons, not just to understand an answer to that first question on the verdict form, but it’s important also because it sets up, if you will, the real dispute of the case, and if you wanted to have a window when the defendants, through the Tobacco Institute, were speaking privately, secretly among themselves, highranking officials of the Tobacco Institute, and want to know why the defense in these cases consistently tries to recast the jury instructions and the questions on the verdict form, you have information that helps you from one of their co-conspirators, and that’s the Tobacco Institute, and here it is. Gafney, at *2 (emphasis in original). Defense counsel objected and moved for a mistrial on the basis that plaintiff’s counsel’s argument was an attempt to “link the defense attorneys to a scheme to conceal the truth about the harmful effects of smoking, which amounted to an attack on appellants’ conduct of their


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

defense in the suit.” The trial court reserved ruling on the motion for mistrial, but expressed concerns that plaintiff’s counsel’s argument seemed to indicate that defense counsel was involved in a conspiracy, and stated that the comments jumped right out at [him].” Plaintiff’s counsel attempted to explain his position, and then told the jury that he “want[ed] to make it completely clear that it is not the position of [appellant or his attorneys] that these lawyers are participants in any conspiracy. There’s no suggestion offered that way whatsoever.” Gafney, at *2. The jury found for the plaintiff, and the defense motion for new trial was denied. On appeal, the Fourth District took great offense with the plaintiff’s comments during closing argument. The court stated: There is no question that appellee’s counsel went outside the broad parameters of permissible closing argument when he turned his commentary on opposing counsel. These statements were totally irrelevant to the issue of appellants’ liability. The insinuation that appellants’ attorneys were engaged in a conspiracy with either the defendants or third parties to mislead, conceal, or manipulate as part of an on-going scheme did not merely push the envelope, but instead went wholly beyond the pale. Gafney, at *5. The court went on expressing its displeasure with the comments, stating: The comments at issue regarding defense counsel did not involve evidence, or deductions and conclusions therefrom. Whether these comments are viewed as an unsubstantiated accusation, an unflattering characterization, or as a mere inadvertent or unintended flourish, they were neither reasonable nor permissible inferences to be drawn from the evidence adduced at trial. Comments accusing an opposing party’s attorney of wanting the jury to evaluate the evidence unfairly, of trying to deceive the jury, of deliberately distorting the evidence, or of participating in a concerted scheme to do so, have no place in our legal system. Id. The Gafney court was not persuaded that counsel’s subsequent comments that he in no way meant to imply that the defendant’s lawyers were engaged in a conspiracy mitigated the effect of the improper comments, and it found that they were “wholly ineffective.” The court further stated that it was “not persuaded that this attempt at clarification served to unring the bell; rather, it appears to us that these comments were reasonably likely to prejudice the jury and fatally impair the fairness of the proceedings.” Further, the court found that even if a curative instruction had been given, “it would in all likelihood

have been insufficient to remedy the damage.” Citing Special v. West Boca Medical Center, 160 So.3d 1251 (Fla. 2014), the court found that “there is no reasonable possibility that the errors discussed above were harmless,” and the matter was reversed and remanded for a new trial. The plaintiff has sought review of the decision in the Supreme Court of Florida. Numerous cases have found comments attacking opposing counsel by suggesting that counsel is engaged in fraud or collusion are improper, but Gafney seems to take the impact of such comments to a new level and clearly indicates that such arguments will not be tolerated under any circumstances. Gafney cited Wicklow v. State, 43 So.3d 85, 87-88 (Fla. 4th DCA 2010) where the Fourth District found that comments “impugning the integrity or credibility of opposing counsel” amounted to fundamental error in criminal cases. By finding that the trial court abused its discretion in not granting a new trial even when the comments were clarified by counsel (and that they could not have been mitigated by a curative instruction), Gafney suggests that such comments are so prejudicial that virtually nothing can be done to allow a trial to continue once they are made. That conclusion in Gafney contrasts with cases where such comments were made yet the judgments were affirmed, see, e.g. City of Miami v. Kinser, 2016 WL 1125833 (Fla. 3d DCA 1016) (affirming despite improper comments where objections were made and curative instructions given), or reversing a grant of a new trial where the comments were not objected to. See e.g., Wilbur v. Hightower, 778 So.2d 381 (Fla. 4th DCA 2001) (finding that the comments did not meet the standards for a new trial under Murphy v. International Robotics Sys., Inc., 766 So.2d 1010 (Fla. 2000)). Many cases have condemned attacks on opposing counsel in various forms, and though comments have been found improper, in some cases reversal was not required. For example, in Rosario – Paredes v. J.C. Wrecker Serv., 975 So.2d 1205 (Fla. 5th DCA 2008), the court found that defense counsel improperly attacked plaintiff’s counsel by arguing that: They do an amazing job, they do an amazing job of trying to convince people of these injuries, but that’s why they keep on hiring these doctors over and over; that’s why Dr. Hoffman has testified 15 times for this Plaintiff’s firm, they’re good. They’re good at what they do and they’re paid very handsomely for it. That’s why these guys are so good. I mean, there’s a network of lawyers and doctors and all working together, everybody is making money. That’s what www.FloridaJusticeAssociation.org | May/June 2016 | 53


‘‘

CLOSINGARGUMENT

Attacks in various forms on opposing counsel are plainly improper and have been condemned by appellate courts in the strongest terms.

these guys do for a living, they testify, they’re professional witnesses. They do this for a living. And how dare they make us look like the bad guy for hiring our own doctors.

plaintiff’s counsel “continuously remark[ed] to the jury that defense counsel had lied to the jury and had committed fraud upon the court and the jury”).

Id.at 1207-08. The court found these comments to be an improper attack on opposing counsel, yet it noted that an offer of a curative instruction was declined and the comments were isolated and did not rise to the level of requiring a new trial.

The Third District found it improper where plaintiff ’s counsel’s closing argument “included an attack on the character of every person associated with the defense, including defense counsel.” Chin v. Caiaffa, 42 So.3d 300 (Fla. 3d DCA 2010). Specifically, calling the defense “frivolous,” suggesting that counsel was “trying to fool you” and suggesting that counsel “called in witnesses that don’t tell the truth” was an improper attack on opposing counsel. Id. at 309. While a lawyer is “entitled to point out the lack of factual or legal support for an opposing party’s contention, or the lack of reasonableness or rationality in an approach,” counsel may not directly disparage the other side. Hartford Acc. & Indem. Co. v. Ocha, 472 So.2d 1338, 1343 (Fla. 4th DCA 1985). To argue that a defense is meritless, in extreme terms, may be construed as an improper attack on counsel. See, e.g., City of Miami v. Kinser, 2016 WL 1125833 (Fla. 3d DCA 1016) (improper to suggest that a defense argument was “ridiculous”); Walt Disney World Co. v. Blalock, 640 So.2d 1156 (Fla. 5th DCA 1994) (improper to suggest that raising a defense of contributory negligence was “outrageous”).

Similar comments were made in Clay v. Thomas, 363 So.2d 588 (Fla. 4th DCA 1978) where the court noted that “the attorneys for both sides conducted themselves more like fight fans than officers of supposedly dignified courts.” Id. at 589. Defense counsel referred to the art of contingent fee representation of injured plaintiffs as “ … the personal injury industry . … A whole trade group … of lawyers, doctors, economists [created] to come into court and sue people.” He chastised the plaintiffs and their attorneys as “just hunting anyone with some kind of assets to pay off these people and these lawyers . . . . Everyone of them having an ax to grind to build a law suit.”

Id. While strongly criticizing the comments, the Clay court affirmed given the lack of objections at trial. In Allstate Insurance Co. v. Marotta, 125 So.3d 956 (Fla. 4th DCA 2013), the court found improper comments by plaintiff’s counsel that defense counsel “made up issues” and “manufactured a defense.” Comments that the defense was trying to sidetrack the jury and to get them to take their eye off the ball was an improper disparagement of opposing counsel. The Marotta court (also citing Special v. West Boca Med. Ctr., as does Gafney) reversed for a new trial on the basis of these comments as well as the cumulative effect of other errors. See also Owens Corning Fiberglass Corp. v. Morse, 653 So.2d 409 (Fla. 5th DCA 1995) (comments that plaintiff’s counsel was engaged in “trickery” and “hiding the ball” were improper, as was comment that plaintiff was told what to say by her attorneys). Perhaps obviously, it is improper to suggest opposing counsel has engaged in fraud upon the jury. See , e.g., Wall v. Costco Wholesale Corp., 857 So.2d 975 (Fla. 3d DCA 2003) (improper to accuse plaintiffs of committing fraud on the court and jury); Emerson Elec. Co. v. Garcia, 623 So.2d 523 (Fla. 3d DCA 1993) (though not specifically related to closing argument, reversing where plaintiff’s counsel accused defense counsel of “fraud, hiding evidence, putting up roadblocks to the discovery of relevant evidence, and picking and choosing the evidence it would produce in response to discovery demands); Sun Supermarkets, Inc. v. Fields, 568 So.2d 480 (Fla. 3d DCA 1990) (reversing where 54 | May/June 2016 | www.FloridaJusticeAssociation.org

In Fasani v. Kowalski, 43 So.3d 805 (Fla. 3d DCA 2010), comments such as opposing counsel having “ridiculed” and “made fun” of a witness were improper, as were comments that the defense counsel were “slick talkers” and their client exhibited “nothing more than corporate arrogance and corporate greed.” Similarly, absent evidence of misconduct, comments that opposing counsel was hiding evidence and fraudulently presenting evidence was “egregious and prejudicial.” SDG Dadeland Assoc., Inc. v. Anthony, 979 So.2d 997 (Fla. 3d DCA 2008); Maercks v. Birchansky, 549 So.2d 199 (Fla. 3d DCA 1989) (reversing for, among other reasons, derogatory remarks made about opposing counsel). As noted above, Gafney cited a criminal case, Wicklow v. State, 43 So.3d 85, 87-88 (Fla. 4th DCA 2010), where the Fourth District found that comments “impugning the integrity or credibility of opposing counsel” amounted to fundamental error in the criminal context. Numerous criminal cases address such arguments, and the impropriety of such comments would seem to be equally applicable in the civil arena. In Wicklow, the prosecutor argued “[t]he only conflicts are between the defense attorney and the evidence. That’s it. Don’t be manipulated . . . don’t be gullible.” Id. at 87. The court noted that those comments did not focus on the evidence, but rather suggested that opposing counsel was trying to manipulate the jury and suggested that the jury would be “duped” if it accepted such arguments. The court flatly stated that “[c]laims of manipulation and deception by opposing counsel have no place in a closing argument.” Id.


Other examples of improper prosecutorial attacks on defense counsel include Jenkins v. State, 563 So.2d 791 (Fla. 1st DCA 1990) (suggesting that counsel sought an acquittal at all costs rather than searching for the truth); Redish v. State, 525 So.2d 928 (Fla. 1st DCA 1988) (suggesting counsel was using “cheap tactics” and “tricks”); Waters v. State, 486 So.2d 614 (Fla. 5th DCA 1986) (characterizing counsel’s arguments as “misleading” and a “smoke screen”); Briggs v. State, 455 So.2d 519 (Fla. 1st DCA 1994) (stating that counsel was not being truthful and was deliberately misleading the jury); Villavicencio v. State, 449 So.2d 966 (Fla. 5th DCA 1984) (suggesting defendant gave a “rehearsed answer” and thus suggesting the answer was concocted by counsel and witness). Finally, some cases address improper attacks that stoop to the level of name calling and insults. In Landry v. State, 620 So.2d 1099 (Fla. 4th DCA 1993), both counsel saw fit to personally insult the other. The prosecutor called defense counsel “maggots” and “poor excuses for human beings,” while defense counsel implied the prosecutor was a “scum bag.” A new trial was ordered, and the court admonished both counsel and reminded them of the oath of admission to The Florida Bar. The Third District reversed and remanded a conviction in a case where the prosecutor asked the jury if they would buy a used car from defense counsel. See Jackson v. State, 421 So.2d 15 (Fla. 3d DCA 1982). Conclusion Attacks in various forms on opposing counsel are plainly improper and have been condemned by appellate courts in the strongest terms. Gafney seems to signal a nearly “zero tolerance” standard for such comments, and great care should be given at trial to not stray into argument which could be perceived as impugning opposing counsel.

PHILIP M. BURLINGTON

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

BARBARA GREEN

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

CHRISTOPHER V. CARLYLE

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

www.FloridaJusticeAssociation.org | May/June 2016 | 55


FJADIVERSITYCOMMITTEE

FERGUSON BY RODNEY G. GREGORY

“U

ntil the 1960’s, Ferguson (Missouri) was a ‘sundown town’ where African Americans were banned from the city after dark.” United States of America vs. The City of Ferguson, case: 4:16-cv-00180, DOC#1 filed: 02/10/16 Page: 38 of 56. The disparities in the City of Ferguson (a suburb of St. Louis), common patterns and practices exist within a historical context, replete with racial tension, rancor, and animus. Race-based disparities in Ferguson are not isolated or aberrational. Unfortunately, as further highlighted below, they exist in nearly every aspect of its police and court operations. There is a strong financial disparity ongoing in Ferguson’s assessment of fines through its court processes. Its officers routinely issue multiple 56 | May/June 2016 | www.FloridaJusticeAssociation.org

citations. Heavy fines include $302 for a single “Manner of Walking” violation, $427 for a single “Peace Disturbance” violation, $531 for “High Grass and Weeds,” $777 for “Resisting Arrest,” $792 for “Failure to Obey,” and $527 for “Failure to Comply.” The latter two offenses are used interchangeably by the Ferguson Police Department (FPD). Data on charges issued by the FPD from 2011-2013 reveal African Americans are disproportionately represented relative to their Ferguson population. Although 67 percent of Ferguson’s population is African American, they are cited for 95 percent of the Manner of Walking in Roadway charges, 94 percent of Failure to Comply charges, 92 percent of Resisting Arrest charges, 92 percent of Peace Disturbance charges, and 89 percent of Failure to Obey charges. Further, African Americans


Let’s discuss the underlying terms and conditions ongoing in Ferguson, the unreported dynamics, that stretch the belief of even the most forgiving minds. First, the fatal shooting of unarmed Michael Brown (a black resident) by a white officer in August 2014, under questionable and hotly debated circumstances spawned the “Black Lives Matter” movement. It also launched a huge Justice Department review, investigation, and recent filing of a civil suit in Federal Court. The following allegations of fact arrive, without editorial interpretation, from the government’s 56-page complaint in U.S.A. vs. The City of Ferguson, case number 4:12-cu-00180, filed in the United States District Court Eastern District of Missouri, Eastern Division, on February 10, 2016. The government (hereinafter “DOJ”) alleged that the City of Ferguson (hereinafter “Ferguson”) engaged in unconstitutional patterns and practices including: Conducting stops and searches, issuing citations and “stop orders,” making arrests, and using excessive force without legal justification in violation of the Fourth Amendment; engaging in retaliation for protected expression and impeding individuals’ right to record official activities conducted in public in violation of the First Amendment; prosecuting and resolving municipal charges in a manner that violates the due process and equal protection clauses of the Fourteenth Amendment; and engaging in racially discriminating law enforcement conduct that violates the Fourteenth Amendment and Title VII. This legal claim is devastating, but the factual basis is appalling. Consider the following: Ferguson has approximately 21,000 residents, 67 percent of the population is black, 29 percent white; 25 percent live below the federal poverty level. Ferguson employs 54 sworn-in police officers, four of whom are African American. Ferguson voters elect a mayor and six individuals to the city council. The council appoints a City Manager, and the Manager acts as the chief executive and administrative officer and directs and supervises all city departments, including the FPD. Additionally, the Manager appoints the Chief of Police. account for 88 percent of all FPD use of force incidents from 2010 to August 2014, including canine bites. Per the Department of Justice, the FPD use of force is, “not lawfully explained by the nature or frequency of interactions between African American individuals and FPD officers.” (Id. at paragraph 115-117). The City of Ferguson’s police operations could be compared to a crime scene in the “Twilight Zone” waiting to be discovered. The elements and circumstances for justice, routinely miscarried, were established long before yet another fatal shooting of an unarmed man by a police officer “in the line of duty.” This shooting, as raw, untimely and visceral as it was, begat an outcry heard around the country. Memories of Rodney King crying out, “Can’t we all get along?” remain unanswered, underappreciated, and unrequited.

The Ferguson Municipal Court (hereinafter “the court”) has primary jurisdiction over all charged violations of the municipal code, processing and resolving the majority of charges brought by the FPD, including many juvenile defenses. The court and the FPD operate in the same building, however, the court was under the direct supervision of the Chief of Police until 2015. The Chief of Police continues to supervise court employees in many respects. The Manager and council hire the court employees, including the city prosecutor and all assistants, the Municipal Judge, and the Court Clerk and all assistants. The presiding Municipal Court Judge served as Ferguson Municipal Judge, Municipal Judge for Breckenridge Hills, and at the same time, Municipal Prosecutor for Florissant, Vinita Park, and Dellwood, other nearby towns in Missouri. www.FloridaJusticeAssociation.org | May/June 2016 | 57


FJADIVERSITYCOMMITTEE Since 2011, the current Prosecuting Attorney also serves as the City Attorney, providing general counsel and representation to the city. The Municipal Judge serves two year terms and presides over court sessions which occur three to six times per year. Further,the Court Clerk and assistant court clerk, all of whom operate under the supervision of the Chief of Police, exercise broad discretion in conducting the court’s daily operations. Ferguson’s municipal code confers broad authority on the Court Clerk, including authority to collect all fines and fees, accept guilty pleas, sign and issue subpoenas, and approve bond determinations. The Court Clerk and assistant clerks routinely issue arrest warrants and perform other judicial functions without judicial supervision (Id. at paragraph 26).

The DOJ alleges that the FPD conducts stops and searches, issues citations, and makes arrests without legal justification. Routinely, FPD officers detain community residents without reasonable suspicion, then affect arrests and deliberately issue stop orders and summons without probable cause.

Five hundred people routinely appear before the Court in a single session, exceeding the court’s physical capacity, lining up individuals outside of Court waiting to be heard. Because of the severe overcrowding, the Court frequently considers 1,200 – 1,500 cases in a single session!

One of several recommendations to ensure due process and other constitutional protections could lead to a national police registry, legislation that was weighed by Congress in 1996, but failed. Consider how it would work: new police hires would be checked against a database of officers who have been stripped of their law enforcement licenses for misconduct. This database, known as the “National Decertification Index,” contains names of about 20,000 former officers who were pushed out of law enforcement. This index has been used inconsistently, resulting in many officers (stripped of their badges) in one jurisdiction free to move to and continue their law enforcement careers in another jurisdiction.

The FPD has at least two practices that are hotly contested: the issuance and enforcement of “wanted” or “stop orders,” and “ped checks.” “Wanteds” is an officer-run system issued as substitute for seeking judicial approval for arrest warrants. It allows people to be arrested on the basis that those people are wanted, often without probable cause. The “wanted” are entered into a statewide law enforcement database, inviting all other law enforcement agencies to arrest that person if located. The key is officers are authorized to unilaterally issue wanted for serious state-level offenses, minor municipal code violations and traffic offenses. The FPD repeatedly issue wanteds based on less than probable cause. Further, the FPD routinely enforces wanteds that are outdated and invalid because the information relied upon is no longer accurate or reliable, or has been rescinded by the issuing agency. Moreover, significant members of these unsupported FPD wanted remain in effect today. On the practice of “pedestrian checks” or “ped checks,” the FPD use this concept to conduct stops of people without having a reasonable suspicion of criminal conduct. These ped checks routinely are nothing more than investigatory detentions that fail to satisfy the Fourth Amendment’s legal threshold. The ped checks also include a pattern of searching individuals without legal justification, a pattern disproportionately impacting African Americans, who are searched at higher rates than others, but without contraband found on them significantly less often than others. The FPD also use section 29-16, the City’s failure to comply ordinance, to routinely arrest individuals who do not do as they are told by the FPD – even when the refusal is not a crime. This practice includes the failure to self-identify despite lacking reasonable suspicion to stop the individual in the first place. Another example of institutional impediments to the fairness and impartiality of the court process occurs from the comingling of the prosecutor court case file. The official file is comingled and that file is handled as a shared file between the two parties, with the court sometimes using the shared file for responding to discovery requests.

58 | May/June 2016 | www.FloridaJusticeAssociation.org

Yet another crucial inherently unreasonable aspect of the FPD activities arises from their pattern or practice of using unreasonable force to escalate encounters with individuals they deem disobedient. The FPD does not hesitate using canines on unarmed subjects including young juveniles. Even if the stops or arrests were without legal basis, or were punitive and retaliatory.

A national clearing house of information could be similar in operation to the National Practitioner Data Bank, which tracks malpractice lawsuits and complaints against doctors. As currently constituted, the index is fraught with shortcomings. A recent year-long Associated Press investigation revealed that thousands of names are missing because the voluntary, privately run effort does not include every state. Further, the states participating differ in how local and state officials track and handle police misconduct. For instance, 44 states and the District of Columbia remove licenses of police officers for misconduct. This process, commonly known as “decertification,” is not nationally shared, and the participating states in data sharing is limited to 39 states, including Missouri, the home state of Ferguson. Further, participating agencies enter only generic information, including names of decertified officers, their employers, dates of decertification, and minimum reasons for the punitive action. Finally, the index is open to the agencies only, not the public. In any event, use of the database was not required in Cleveland or Albuquerque after other major agreements to overhaul and correct police practices were negotiated by the Justice Department. It is recommended by the DOJ for use in Ferguson. Stay tuned folks, this process remains in development. RODNEY G. GREGORY

Rod is a AAJ/FJA Board Member, former AAJ/FJA membership chair, founding chair of the FJA Diversity Committee and a “old school “ trial lawyer activist. He received his B.S. in Chicago, J.D. in Lexington,Va., LLM in Nottingham, England, was on the tenure track as a Law School Professor, lectured throughout America on various legal topics, and is based in Jacksonville, Fla. He has two puppies. Diversity is his life.


TAMPA BAY 813.618.3108 www.i-r.com tampabay@i-r.com


FJAYOUNGLAWYERSSECTION

THE GOOD,THE BAD, THE AWESOME MY YEAR IN REVIEW

T

his past year has been one in which I have worked harder than I ever did before, and yet it has been one of the most rewarding, both personally and professionally. Let me start by saying it has been more than an honor and privilege to serve as Chair of the Young Lawyers Section. Let me also preface everything else I say by making it clear that there is no achievement or accomplishment by the Young Lawyers that is not the result of a total team effort. And what a great team we were!

60 | May/June 2016 | www.FloridaJusticeAssociation.org

The start of my year as Chair was rocked by the news that our longtime FJA liaison, Elisha Charpentier, was moving on to bigger and better things. While we wished Elisha the very best, there was a sense of dread for the future since she had been the glue that held the Young Lawyers together for the entire time I had been involved with FJA. The sense of dread faded fast when FJA’s Deputy General Counsel, G.C. Murray became our new liaison. G.C. has been an integral part of every success the Young Lawyers achieved this year. He has worked tirelessly for our organization and our causes. He has provided support


With the help of Laurie Briggs, membership chair, and others, we developed a list of board requirements. We were mindful of potential financial considerations and made a list of possible areas of participation that required time rather than monetary output. Each board member is now required to perform a minimum of three of the listed items each year. These include attending a major FJA seminar, attending a law school outreach program, lobby days, becoming a Soaring EAGLE, contributing to PAC, participating in grassroots political efforts (i.e. walking for a candidate, or staffing a polling station), and possibly staffing a lobby team lunch during session. The only mandatory requirements are the recruitment of a new member or participation in the membership committee’s activities, and participating in the mock trial competition, either through fundraising, recruiting volunteers or staffing the event. I also made the decision to move the mock trial competition to Orlando. Perhaps I didn’t think that one through carefully enough, because, as it turns out, running one of those is a full-time job. The competition had been held in Tampa in the past. This was mostly because Hillsborough County let us use the courthouse free of charge. Although we did not have to pay for use of Orange County’s courthouse, we did have to pay for security, janitorial services and off-duty deputies. Rather than lean on FJA for additional funding, we took it upon ourselves to raise the money to cover these and other expenses outside of our passed budget, approximately $30,000. A huge area of help, and one that requires special recognition and thanks, came from the partners of my firm, Colling, Gilbert, Wright & Carter. They underwrote the expense of the reception which we hosted at the History Center, otherwise known as the old Orange County Courthouse. We were able to host an amazing cocktail party in the historic courtroom (famous for Ted Bundy’s arraignment.) The event was attended by all participants and a number of the judges and attorneys that participated in the competition earlier that day.

BY VANESSA BRICE at every turn and for that I am personally grateful. We were also to grateful to have the assistance of everyone at FJA who made our Young Lawyers Section a priority this year. Special thanks to Debra Henley, John Brazzell, Devin Dudley, Malik Houghton, Alexis Simoneau, John Fox and Kristen Broner. We started the year out with the Young Lawyer’s Retreat prior to the Al J. Cone Trial Skills Seminar. We laid out an ambitious agenda for the year. My primary goal as Chair of the Young Lawyers was to create a greater sense of responsibility on the part of the YLS board members. I stressed then, and throughout my year, that I wanted our board to be more than titleholders. I wanted us to be engaged, involved, committed, and, above all, excited.

Our mock trial event received the highest praise from all involved. The Stetson University coach, winner of the past competition, said it was one of the best competitions he had participated in. Our own Jamie Holland, coach of Florida Coastal University’s mock trial team, reported to the board that this was the best competition, bar-none. The list of accolades goes on. The reason for the competition’s success is not so much our organizational skills, but because we had unprecedented involvement by the judiciary. Every single competition was presided over by an active, sitting, judge. Judges from Orange, Osceola, Seminole and Brevard counties participated in the competition. The final session was presided over by Federal Court Judge, Paul Byron. Their involvement alone elevated our competition in ways we did not imagine. A large part of why the judiciary in this area has been so supportive is because: one, every member is committed to the education of future lawyers; and two, because FJA and our local Central Florida Trial Lawyers Association are always ready and willing to support all judicial candidates when it comes to merit retention or election matters. Another milestone reached in last year’s mock trial competition is that we were able to award more prize money than ever before. Prizes www.FloridaJusticeAssociation.org | May/June 2016 | 61


FJAYOUNGLAWYERSSECTION were given to the top two teams. Additionally, a $1,000 award for the best advocate, sponsored by Bruce Braxton of Fast Funds (an FJA Business Eagle), was awarded to a competitor selected by the judges as the most outstanding advocate. This past mock trial competition had more teams than any competition we have hosted in the past. I remain disappointed that some law schools did not participate, some because of funding and other challenges, but I am hopeful we will be able to assist in the future through our fundraising efforts. My main goal, and one I will continue to pursue, was to increase diversity in the Young Lawyers membership. With the help of G.C. and others, we not only increased diversity in our ranks, but we increased our membership numbers overall. Additionally, there are greater numbers of women and minorities in the Young Lawyer’s section than ever before. I truly believe that our Young Lawyer’s section is more accurately representative of the changing face of our profession in general and I am so proud to have been a part of that evolution. This year, we also had unprecedented involvement in our Young Lawyer Lobby Days. We scheduled our Lobby Days event to coincide with that of The Florida Bar’s Young Lawyers Division. On the final day of Lobby Days, we were able to team up with the Bar young lawyers and lobby issues relating to young lawyers employed in the public sector. We all recognized that those devoted to public service often forego the benefits that come with private practice, and we showed our support of those lawyers by lobbying for student loan incentives to help them maintain their employment in the public sector. In addition to my involvement with Lobby Days, G.C. and I were privileged to address the Florida Legislative Black Caucus. I was afforded a significant block of time in which to address issues and challenges faced by my clients. I was able to speak freely about the negative impact of some the legislation and the way in which some laws had an exponentially greater impact on the Black community which possibly was not considered at the time the legislation was debated or enacted. We spent time answering questions and, most importantly, developing relationships with those legislators. Every one of them made time available for the young lawyers at our Lobby Days, in large part because of G.C.’s efforts to keep us visibly supportive of them and their constituents. Interaction with legislators is perhaps one of the most important initiatives we have set in motion. When Todd Copeland addressed the Young Lawyers last year, one of things he stressed as being most important and integral to the strength and future of FJA is member involvement with legislators. He emphasized the importance of getting to know our local legislators, visiting them at their offices when they were out of session, volunteering to assist them at community functions, and essentially ensuring they are familiar with us so that when we are at Lobby Days doors are open to us. Through my involvement with the Florida Black Legislative Caucus in particular, I have had a number of opportunities to work with some of my Orlando legislators, to assist in their communities, provide education, particularly to Veterans in certain areas, and, in general, ensure that FJA remains known as an organization that cares about injury victims. As an organization, we became an officially registered affiliate of The Florida Bar Young Lawyers Division. One of our members, Sue Ann Robinson, was a member of The Bar’s Young Lawyers Division 62 | May/June 2016 | www.FloridaJusticeAssociation.org

Board of Governors. It was my honor to appoint her to my board as a special liaison to The Florida Bar. Through this affiliation and Sue Ann’s appointment, we created more avenues of participation between our members and The Florida Bar. Additionally, I was also privileged to serve on, and continue to serve on, The Florida Bar Military Affairs Committee where I continually strive to present the FJA to an organization that has little knowledge of our existence or our objectives. The list of things we accomplished this year go on. We have seen unprecedented success in the courtroom by our members, many of whom attended the Al Cone Seminars. FJA, with our members’ help, put on a number of seminars focused specifically on practice issues encountered by young lawyers. From “My First Trial” to “Boot Camp,” more seasoned attorneys presented on topics germane to our young lawyer practices, they addressed challenges we face, and most made themselves available as resources for any young lawyers to call upon if needed. You cannot buy access to expertise of that nature, and yet FJA members give it freely. Thank you – you know who you are! A retrospective is not complete, however, without looking at opportunities for future growth – otherwise known as the things we did not accomplish this year. We wanted to host a section-wide charitable event. However, time got away from us and we did not do this. We still hope to establish a section charity that we can all support. My vote was a golf tournament. Apparently not as many lawyers play golf as one would imagine. As I step away from the chair position, I am left with a sense of pride at our accomplishments this year, but I am also left with the sense that there is so much left to do. We need to continue to grow our numbers because this is where the future of FJA lies. We need to increase our section’s involvement in critical legislative matters that affect our practices. We need to promote professionalism within the practice so we can maintain the sterling reputation established by those who have gone before us. I am so thankful for my board, my firm and its partners, my colleagues, and FJA staff. Without everyone’s assistance, participation and input, nothing we did this year could have been accomplished. Looking back, I see where I could have been more effective and interactive with the members of my section. But I know this, being involved in this organization has made me a better attorney and a better person. Because of this organization, I always feel like I am fighting for the greater good and it’s a responsibility I take very seriously. I will continue to fight for my clients and all of yours. I am comfortable that I leave this chair, which has become near and dear to my heart and very much a part of who I am, in very good hands. Jonathan Gilbert, as you take over “my” Young Lawyers Board, I challenge you to continue the work that we started for in us is the future and from where I sit, the future is bright.

Vanessa Lee Brice

Ms. Brice was born and raised in Zimbabwe, Africa and came to the United States after marrying her husband, a U.S. Marine (now retired). She practices personal injury law and handles VA Benefit claims with the law firm of Colling, Gilbert, Wright & Carter in Orlando, Florida.


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EAGLESPOTLIGHT

2015-2016 EAGLE Recruiting Champions May 1, 2015 – April 30, 2016 SPONSOR - $3,000 Recruiter Name

Recruiting Value

Robert Mayer Rubenstein

# of Recruits

Recruiter Name

Recruiting Value

# of Recruits

Laurie J. Briggs

$3,000

1

$216,501

30

Eric Romano

$53,000

5

W. M. Chanfrau, Sr.

$3,000

1

Dan Newlin

$50,000

1

Todd E. Copeland

$3,000

1

Jason F. Lamoureux

$42,000

4

William Thomas Cotterall

$3,000

1

Lake H. Lytal, III

$35,500

5

Beth Walker Finizio

$3,000

1

Dale M. Swope

$34,500

4

Debra Henley

$3,000

1

Troy Rafferty

$33,800

2

Leslie Mitchell Kroeger

$3,000

1

Richard E. Chait

$26,500

2

Melissa M. Polo

$3,000

1

Fred A. Cunningham

$25,000

1

Matthew Nichols Posgay

$3,000

2

James W. Gustafson, Jr.

$22,500

5

John F. Romano

$3,000

2

Tiffany M. Faddis

$21,800

6

Kimberly J. Syfrett

$3,000

1

Damian B. Mallard

$19,500

14

Gregory M. Yaffa

$3,000

1

Waylon Thompson

$19,000

4

Brenda S. Fulmer

$2,000

1

Stephen F. Cain

$18,000

4

James D. Gordon, III

$2,000

1

Anthony Quackenbush

$18,000

3

David J. Zappitell

$2,000

1

Jason Mulholland

$17,300

3

W. Cort Frohlich

$1,800

1

James Lawrence Magazine $13,000

3

Carlos R. Diez-Arguelles

$1,500

1

H. L. (Larry) Perry

$13,000

3

Jack J. Fine

$1,500

1

Todd Jordan Michaels

$12,000

1

Scott Lyon Henratty

$1,500

1

Bernard F. Walsh

$12,000

5

Scott R. Jeeves

$1,500

1

Joseph V. Camerlengo, Jr.

$10,000

1

Marcus J. Michles, II

$1,500

1

Clifton C. Curry, Jr.

$10,000

1

GC Murray, Jr.

$1,500

1

Steven R. Jaffe

$8,000

2

Joseph N. Nusbaum

$1,500

1

Julie Braman Kane

$8,000

1

Skip Pita

$1,500

1

Harvey V. Cohen

$4,500

3

Kellye A. Shoemaker

$1,500

1

David Corey Dismuke

$4,500

2

John J. Uustal

$1,500

1

Lee Jacobson

$4,500

3

John C. Murrow

$500

1

Stephen Watrel

$4,500

2 as of 4/30/2016

64 | May/June 2016 | www.FloridaJusticeAssociation.org


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

Since May 1, 2016

Recruiter Name

Recruiting Value

T. Michael McLeod

# of Recruits

Recruiter Name

Recruiting Value

# of Recruits

$10,000

2

Vanessa Brice

$1,500

1

Alexander Murphree Clem

$5,000

1

Richard E. Chait

$1,500

1

James W. Gustafson, Jr.

$5,000

1

Matthew Nichols Posgay

$1,500

2

Ricardo M. Martinez-Cid

$5,000

1

Michael J. Winer

$1,500

1 as of 6/6/2016

AL J. CONE ®

TRIAL ADVOCACY INSTITUTE • AUGUST 4-6, 2016 GAYLORD PALMS, ORLANDO Al J. Cone Trial Advocacy Institute® is three full days of engaging presentations and interactive workshops designed specifically for new personal injury attorneys to advance their trial skills.

TO REGISTER, VISIT THE FJA WEBSITE FLORIDAJUSTICEASSOCIATION.ORG


EAGLESPOTLIGHT

THANK YOU EAGLEs

In recognition for unwavering commitment to the EAGLE program, we recognize the following upgraded, new or returning EAGLE members. BENEFACTOR - $10,000

William R. McBride

McBride, Scicchitano, & Leacox Recruited by Clifton C. Curry, Jr.

PATRON - $5,000

Matthew K. Foster

Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A. Recruited by James W. Gustafson, Jr.

W. Cort Frohlich

Frohlich, Gordon, & Beason, P.A. Upgraded by James D. Gordon

Mike Morgan

Morgan & Morgan, P.A. Recruited by Alexander Murphree Clem

Lance August Harke

Harke, Clasby & Bushman, LLP Recruited by Ricardo M. Martinez-Cid

Timothy M. O’Brien

Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. Upgraded by Troy Rafferty

66 | May/June 2016 | www.FloridaJusticeAssociation.org

Robert G. Kerrigan

Kerrigan, Estess, Rankin, McLeod & Thompson, LLP Recruited by T. Michael McLeod

Randle D. Thompson

Kerrigan, Estess, Rankin, McLeod & Thompson, LLP Recruited by T. Michael McLeod


SPONSOR - $3,000 James D. Gordon, III

Thomas R. O’Malley

Frohlich, Gordon, & Beason, P.A. Upgraded by W. Cort Frohlich

O’Malley & Wolfe, P.A. Recruited by James Lawrence Magazine

ASSOCIATE - $1,500

Manuel G. Franco

Franco Law Firm LLC Recruited by Michael J. Winer

Mark A. Touby

Chris E. Frohlich

Touby, Chait & Sicking, P.L. Recruited by Richard E. Chait

Frohlich, Gordon, & Beason, P.A. Upgraded by W. Cort Frohlich

SOARING - $750 N. Joel Harris

Coker, Schickel, Sorenson, Posgay, Camerlengo & Iracki, P.A. Recruited by Matthew Nichols Posgay

Cassidy Perdue

Stefano Portigliatti

Colling, Gilbert, Wright & Carter Recruited by Vanessa Brice

Coker, Schickel, Sorenson, Posgay, Camerlengo & Iracki, P.A. Recruited by Matthew Nichols Posgay

BUSINESS BENEFACTOR - $10,000

Upgraded TAMPA BAY 813.618.3108

www.i-r.com BUSINESS SPONSOR - $3,000 tampabay@i-r.com

PWS & Co., LLC Recruited by Todd Copeland and Carlos Diez-Arguelles

www.FloridaJusticeAssociation.org | May/June 2016 | 67


INDEX

Index Admissions, technical admissions based on untimely responses do not support dismissal where pleadings or record evidence contradict technical admission...46 Arbitration, nursing home, procedurally fair agreement not rendered procedurally unconscionable where no evidence facility did not prevent reading of agreement, etc. …14 nursing home, provisions capping damages voided the entire agreement notwithstanding presence of severability clause, question certified…13 Attorneys fees, as sanctions for misconduct...30 fees, petition for greater contingency fee...32 fees, discovery, insurance defense counsel hours are discoverable in claims for fees under §§624.155 and 627.428…13,21,22,51 fees, offer of judgment, monetary offer enforceable where both monetary and nonmonetary causes of action claimed but “true relief ” sought is monetary…15 fees, petition for approval of non-standard contingency fee, denial not subject to certiorari review, evidentiary hearing should be held re waiver of standard fee…15 fees, petition for approval of non-standard contingency fee, evidentiary hearing should be held re waiver of standard fee ...21 fees, proposal for settlement, inclusion of terms regarding whether a release would be provided is not required...51 fees, proposal for settlement, recent cases add to ongoing confusion...20 fees, public records requests, no requirement of public agency acting unreasonable or in bad faith for a fee award…13 fees, sanctions, amount of fee award must directly relate to fees and costs incurred as a result of misconduct…15 Closing Argument attacks on opposing counsel, discussion and practice tips...52 “improper bolstering,” statements improper but did not deprive defendant of fair trial...20 improper “send a message” argument and personal attack on defense counsel’s credibility, large tobacco verdict reversed and case remanded for new trial…14 improper “send a message” argument results in reversal...19, 51 various improper arguments, prejudice mitigated by curative instructions…15 Damages, punitive, award of 100% of defendant’s net worth was excessive…16 Default vacation, evidentiary hearing required on motion to vacate where colorable entitlement to relief shown...51 vacation, excusable neglect standard not satisfied by party’s lack of action to ensure timely response filed...51 Discrimination, Ferguson, MO, patterns and practices of racial discrimination detailed...56

68 | May/June 2016 | www.FloridaJusticeAssociation.org

Dismissal, indispensable parties, dismissal of complaint required where indispensable party could not be joined due to immunity...51 Dram Shop, restaurant’s attempt to sober up customer, undertaker’s doctrine did not apply to override statutory immunity…13 Due Process, substantive, discussion and clarification of scope of rational basis test in light of McCall…13 Error, bounds of judicial discretion narrowing, commentary on recent cases...15 Evidence Daubert, discussion of recent cases distinguishing lay from expert opinion...42 expert witness, physician’s assistant, not qualified to opine about need for future surgery where he was not authorized to independently diagnose need for surgery...46 expert witnesses, do not tender witness as an expert or ask court to declare witness’ expertise...46 expert witnesses, error to exclude biomechanical engineer/M.D.’s testimony re injury causation...47 expert witnesses, improper for summary judgment affidavit to contain legal conclusions...46 hearsay exceptions, responses to questions and statement of identification as spontaneous statements...46 hearsay exceptions, trial tips re the admissibility of excited utterances...44 hearsay, promissory note is admissible to establish the existence of a contractual relationship and rights and obligations of parties...46 judicial notice, advance request to court required...47 lay opinion, identification of an person in a surveillance video is admissible lay opinion...46 lay opinion, witness not allowed to opine that surveillance video showed defendant concealing a firearm under his shirt...46 recorded conversations, may be admissible where party recorded had no expectation of privacy...46 “representative” (statistical) evidence, may be used to show predominance of common questions of law or fact...46 FJA, profile of incoming 2016-17 President Jimmy Gustafson...6 Insurance bad faith, recent cases discussed...21 court awarded fees, covered by standard liability policy...21 duty to defend, insurer had duty to defend against class action lawsuit...23 Judgment, interest on...31 Jury Instructions, revisions to civil jury instructions relating to emergency medical treatment, failure to maintain evidence or keep records, medical negligence, and damages…13 Medical malpractice expert witness qualifications...30 presuit discovery...30 presuit notice, assertions made...31 statute of limitations, knowledge triggering...31 wrongful death, conversion when plaintiff dies ...30


Premises Liability fall through roof skylight, summary judgment proper where decedent was told of danger, and provided and instructed to use safety harness…15 summary judgment, questions as to whether landowner had constructive knowledge of dangerous condition…16 Procedure electronic filing of documents, explicit file size limitations in Fla.R.Jud.Admin. 2.516 and 2.525 deleted…13 motion to dismiss, error to review prior separate complaint...51 when case is at issue...30 Products Liability inferior vena cava filters, history of fracture and other defects and litigation...26 talcum powder, link to ovarian cancer discussed...26 Products Liability tobacco, “manifestation” defined for purposes of class membership “cut-off date”…13 tobacco, individual members of Engle class can seek punitive damages under theories of negligence or strict liability…12

Psychological Exam, scope, ordering without specific limitations is prohibited...20 Sovereign Immunity, complaint against governmental entity, compliance with statutory notice requirement need only be pled general…15 Statute of Limitations, client bound by lawyer’s pre-complaint “admission”, discussion of major flaws with Bove decision...48 Summary Judgment intersection collision, questions re maintenance of visibilityblocking foliage by city, city’s landscaping service, and adjacent homeowner…16 opposing evidence, granted where non-moving party failed to identify where in the record evidence was located ...21 Workers’ Compensation attorneys, fees, Supreme Court holds statutory fee schedule unconstitutional…12, 36 reasonable fees return – and with it the right of injured workers to have their voices heard in court...36 Young Lawyers Section, outgoing Chair’s review of past year’s accomplishments...60

AdvertisersIndex Accident Reconstruction BEC Consulting, LLC................................................................. 24

Litigation Funding Fast Funds, Inc............................................................................... 31

Robson Forensic ......................................................................... 47 ADR Services Upchurch, Watson, White & Max.............................................. inside back cover

Orthopaedic Surgeon Panhandle Orthopaedics................................................................ 28

Attorney Advertising Cohen Milstein........................................................................... 33

Rehabilitation Services NeuLife Rehabilitation...........................................inside front cover Settlement Services

Craig Goldenfarb P.A.................................................................. 11

Garretson Resolution Group.......................................................... 63

Osborne and Associates Law Firm............................................... 39

LRG Settlement Services ............................................................... 55

Searcy, Denney, Scarola, Barnhart & Shipley............................... 17

NFP Structured Settlements .......................................................... 25

Attorney Banking Esquire Bank............................................................................... 35

Synergy Settlement Services............................................................ 45

Expert Witness & Wealth Management Charles W. Ranson Consulting, LLC...........................................41

Video Production Image Resources............................................................................. 59

Law School Stetson University College of Law............................................... 29 www.FloridaJusticeAssociation.org | May/June 2016 | 69


IMPORTANT DAUBERT UPDATE The Florida Justice Association has advocated and continues to advocate that the standard of evidence for the State of Florida should continue to be the Frye Standard. When taking into account the current burdens on the Florida Court System it is clear that Daubert would unnecessarily impose an immense procedural burden on our courts. Furthermore, the FJA rejects the premise that “junk science” is admitted under Frye. In 2013, the Legislature enacted the Daubert standard in Florida Laws, Chapter 2013-107, which is codified at Section 90.702, Florida Statutes (2015). The Florida Supreme Court will hold oral arguments on SC16-181 IN RE: Amendments to the Florida Evidence Code which, in part, will deal with the Code and Rules of Evidence Committee Three Year-Cycle Report recommendation to NOT adopt Daubert as a rule of court. The oral arguments will take place on Sept. 1st at 9AM. While the FJA is focused on the oral arguments and ensuring the Daubert Law is not adopted, it is still critical to having Daubert ruled unconstitutional and that will likely only occur through a case and controversy coming before the Court. If Daubert is used in a case you’re working, please remember to raise the constitutionality argument in that case. The FJA has resources available to members who are raising the constitutionality issue; please visit our website’s resources page or contact Deputy General Counsel G.C. Murray, Jr. at gcmurray@floridajusticeassociation.org.

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JOURNAL

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

Florida Justice Association 218 South Monroe Street Tallahassee, Florida 32301 (850) 224-9403 May/June 2016 FLORIDA JUSTICE A S S O C I AT I O N

Change Service Requested

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

FJA @(850) 224-9403

FloridaJusticeAssociation.org