FJA Journal - May/June 2017

Page 1

JOURNAL FLORIDA JUSTICE ASSOCIATION

Florida Justice Association • May/June® 2017 • #596

FLORIDA JUSTICE ASSOCIATION

2017-18 FJA PRESIDENT

DALE SWOPE

®


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MAY/JUNE 2017 - NO. 5962014 March March 2014

CONTENTS HIGHLIGHTS

ON THE COVER:

2017-18 FJA President Dale Swope

pg 10

5

Passing The Baton—Thoughts From the Outgoing and Incoming FJA Presidents

24

Supreme Court Curbs Discovery Concerning Treating Physicians, Your Clients and You

30

Composite Coated Hernia Mesh Medical Devices Have Yielded Disastrous Results for Patients

34

Dangerous Toys Threaten the Youngest and Most Vulnerable Members of Our Communities

36

A Primer on the Use of Learned Treatises in Cross-Examination

47

The Necessity of Objecting to Allegedly Improper Comments in Closing Argument

50

Pointers for Ferreting Out Jurors Who Hold Intractable Preconceived Opinions

IN THIS ISSUE Summaries of 2017 Legislation that may affect your practice

pg 14

A practice manual for finding and dealing with juror nondisclosure

pg 40

5 President’s Message — Jimmy Gustafson 6 President’s Message— Dale Swope 8 Executive Director’s Message — Paul Jess 10 Special Focus: Dale Swope 14 Special Focus: 2017 Legislative Wrap-Up 19 Cases and Commentaries — Kenneth D. Kranz 21 Legislative Notes 24 Tips for Auto Practitioners — Dale Swope and Brent Steinberg 30 Mass Torts — Robert E. Price 33 Medical Malpractice — Scott R. McMillen and Allison McMillen 34 Products Liability — Adam J. Langino and Leslie M. Kroeger 36 Evidence — Matt Schultz 40 Civil Procedure — Roy D. Wasson 47 Closing Argument — Philip M. Burlington, Barbara Green and Christopher V. Carlyle 50 FJA Appellate Practice Section – Tom Seider 53 FJA Young Lawyers Section – Jonathan Gilbert 56 Member Outreach 58 EAGLE 61 Index

www.FloridaJusticeAssociation.org | May/June 2017 | 3


2017-2018 FJA OFFICERS, EXECUTIVE COMMITTEE AND BOARD OF DIRECTORS PRESIDENT Dale M. Swope PRESIDENT-ELECT Lake H. (Trey) Lytal, III TREASURER Leslie Mitchell Kroeger SECRETARY Eric Romano

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

IMMEDIATE PAST PRESIDENT James W. Gustafson, Jr

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

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

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

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

AMICUS CURIAE COMMITTEE Phil Burlington APPELLATE PRACTICE SECTION Celene Humphries WORKERS’ COMPENSATION SECTION Richard E. Chait YOUNG LAWYERS SECTION Heather Freeman Jones Christopher Keller WOMEN’S CAUCUS Amber Hall Kerri C. Smith

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

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

JOURNAL STAFF EDITOR-IN-CHIEF Kenneth D. Kranz JOURNAL COORDINATOR Jan Brown

MARKETING COORDINATOR Kalon Hopkins

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


PRESIDENT’SMESSAGE

YOUR EFFORTS MADE THIS

A VERYGOOD YEAR by FJA 2016-2017 President Jimmy Gustafson

This has been an exciting year to be President of the Florida Justice Association. We faced many challenges, and how we responded to those challenges would determine the landscape of our future. We decided to take the more difficult road of engaging heavily in the election cycle, to bring in a wholesale change in the legislative environment. In order to do that, we needed our membership to participate and sacrifice a great deal of their time and treasure to bring about that wholesale change. It was a daunting task, and success was not assured by a long shot. And then it began to happen: our members responded with generosity and encouragement, and day by day, week by week, our goals began to take shape as achievements, and those achievements produced results. When the legislative session came around, those results began to bear fruit. Insurance and industry groups began bellyaching about the influence of the trial lawyers, as if the common people don’t deserve a voice in our state government. Bad bills did not get hearings. Good bills moved, and fair and honest dealing became the currency, rather than one-sided favoritism and gamesmanship by insurance lobbyists. That should be our expectation: having a real voice in our state government. Thanks to the intelligent, disciplined efforts of our professional staff that is second to none in Florida, and the generosity of our members, we have that real voice. But we need to keep our foot on the gas and not let up. Thanks to renewed focus on the health of our organization, membership is on the rise, fundraising is being spread among more members, and we have a tremendous and loyal staff that can accomplish the goals we set. The Florida Justice Association’s future is bright – as bright as we all want to make it. This is a great time to be a part of the Florida Justice Association. Thank you for letting me be a part of that. Serving as President has been uplifting, fulfilling and a highlight of my career, and I am grateful for all the encouragement and support along the way. Our next President, Dale Swope, has worked extremely hard and is prepared to lead us into the bright future that awaits. He deserves our encouragement and support, and he will do a great job for all of us.

www.FloridaJusticeAssociation.org | May/June 2017 | 5


PRESIDENT’SMESSAGE

TIME FOR US TO TAKE

THE WHEEL

by FJA 2017-2018 President Dale Swope

W

hen I was young – like in law school - I drove endurance races like the 12 hours of Sebring. As third driver, you know in advance almost exactly what time your turn behind the wheel will start. For hours you stand with one foot on the pit wall, helmet in hand, watching the clock tick down while the sun gets low in the sky and wondering if you really need to go to the bathroom one more time. And then it all explodes. The car comes screaming down pit road, the crew jumps over the wall with a stop marker, jacks, tires and the fuel line. The car door swings open as the driver is scrambling out the other side. You get shoved in, still trying to lace your chinstrap with gloves on, someone is tugging the shoulder belts so tight you can’t breathe, four impact wrenches are pounding lug nuts into submission and someone plugs in your radio just in time to hear somebody else yelling at you to restart the engine. The last driver is now shouting through the noise and your helmet something about oil in turn schmire as the hood goes down, you’re trying to say turn what?? as the jacks release the car to drop, and suddenly everyone is frantically waving you out and onto the track!! You want more than anything to just say WAIT, WHAT?? I’m not ready!!! This feels a little bit like that. It was about 1992, the year before our current 3L clerk was born, that I read the first message from a new AFTL president. Reflecting on his path, he wrote: I did not come from a so-called “prestige” law firm. I was primarily self-taught in my trial skills. I have tried many jury cases but I have not won them all. I have won my share, perhaps more, but I’ve had to be the one to utter the dreaded words “Poll the Jury” too many times. Parts of my soul, like ghosts in a haunted house, roam at night in Florida courthouses searching for re-trials. … So I am, I believe, typical of our members. That new president was Phil Freidin – before he became the wellknown titanic champion for democratic principles that he is today. He wrote that his AFTL participation had for years been limited to attending seminars and reading the Journal. (Which of course is even better now than it was!) 6 | May/June 2017 | www.FloridaJusticeAssociation.org

But as far as getting involved, I considered myself far too “busy”. From 19__ to 19__ (actual dates omitted to avoid embarrassing Distinguished Fellow Freidin, but they spanned 15 years) I referred to the Academy as ‘them’. “They” had no connection to me. I defined myself as an outsider and accordingly could not imagine being able to influence the outcome of things. When the legislature continuously chipped away at my clients’ rights, I wanted to know what “they” were doing about it. When I first read this, he seemed to be describing and speaking directly to me. And when he wrote – The Academy doors are wide open for all trial lawyers. The opportunities for you to participate and even lead are as big as your ability and desire to work hard will allow. No one should feel excluded. We need you more than we ever have as this struggle continues. I was sold. It was in that minute, when I read that specific page that I decided I should do more. Actually that I had to do more. So now, more than 20 years later, I am writing my own first president’s page, and searching for words that can help some of you, who are perhaps in the penumbra and unsure about committing, to do more. I have abandoned all pride and shamelessly stolen whole sections of Phil’s writing in the sincere hope that it will move many of you the same way it moved me. What he wrote then is still true now. We still need you now, more than ever, as the struggle continues. These are better times, for sure. Thanks to a string of great presidents, culminating in IPP Jimmy Gustafson, and a superbly committed professional staff, we are riding a tide of success that holds promise so bright you hate to discuss it for fear of a jinx. But the forces against us are the same. They are the insurers who miss the good old days with they could abuse their insureds and claimants with impunity. They are the businesses who hate safety regulations but also detest being held accountable for the damage caused by their failures.


They are the HMO’s and health insurers who inject the medical judgment of a ‘case manager’ for that of a treating physician and nursing home operators who know they are cheating their patients but cut corners anyway.

These powerful but misguided forces look ahead and see nothing to deter them from that profiteering path.

They are the hotels and theme parks who turn a blind eye to the trafficking of enslaved women and children in the facilities they operate for profit.

So I asked the question, who will be defending the system. Would the Media? Or the Florida Bar? Could our Clients? Would there be anyone?

Nothing but us.

They are the employers who got the good end of the workers’ comp ‘grand bargain’ and who would prefer to discard workers maimed by injury and illness like they do their worn out machines that are broken beyond repair by misuse and abuse.

Then and now, there is only US.

They are all of the powerful who have become so drunk on greed that they no longer concern themselves with the safety of the very public that helped them achieve economic success.

It is US.

So I ask you now, to change your pronouns. The FJA is not them. The FJA is you.

And it is time for us to take the wheel. So let’s get focused, hit the gas, and go make great things happen.The race is ours to win.

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A Florida Bar credit information sheet is available at in a format convenient you toregistration listen and learn any time. for you to for check in at each day. at If you need a room name or directions to a seminar room, someone at the registration desk can assist you.

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The companies represented in the exhibit area

provide substantial support and contribute greatly to Take Advantage of Our CLE On-Demand the success of the Masters of Justice. Please take @ floridajusticeassociation.org OR Call CLE at (850) 521-1097 www.FloridaJusticeAssociation.org | May/June 2017 | 7


EXECUTIVEDIRECTOR’SMESSAGE

YOUR Membership Matters by Paul Jess, FJA Interim Executive Director

I

have spent the past few weeks since the end of the 2017 Legislative Session traveling around Florida and have had the privilege of meeting with many of the Florida Justice Association’s outstanding members.

It is impressive to witness the optimism for the Florida Justice Association that is alive among our membership. There are good things happening in our organization. It is time to spread this word to lawyers who should be FJA members and convince them to join our team! The Legislative Session set the stage for real consideration and hopefully the ultimate passage of important policy changes that would tremendously benefit your clients and help you be even more successful in your pursuit of justice on their behalf. These are issues like having Florida join the 48 other states that require drivers to carry bodily injury liability insurance, allowing for prejudgment interest in personal injury cases, ending the sweetheart, one-of-a-kind appeal bond deal in Florida law enjoyed by big tobacco companies, and holding property owners accountable when they turn a blind eye to human trafficking taking place on their property. Although none of those issues passed both chambers of the Florida Legislature this past Session, they all got committee hearings. The legislation to require bodily injury liability auto insurance even passed the Florida House of Representatives by a wide margin. Also, due to months of behind-the-scenes negotiations by FJA leaders, like President Dale Swope, a bill passed that requires ride sharing companies like Uber and Lyft have $1 million in liability coverage when a passenger is in the car, and must have at least $50/100K limits

8 | May/June 2017 | www.FloridaJusticeAssociation.org

whenever the app is on. On the other hand, legislation meant to harm your clients -- bills to gut Florida’s insurance company bad faith law and to limit the amount of medical damages that can be recovered from wrongdoers -- never even got a hearing. As one FJA member told me recently, “It feels great to be back on offense again!” On issue after issue, however, it’s imperative for FJA members and the people we represent to actively engage in the debate. 2018 is an election year and numbers count. In that light, we not only must grow our membership roster, we also must raise our voices across the state and demand these important policy changes occur. FJA Treasurer, Leslie Kroeger, has also been the FJA’s Membership Committee Chair for the past year and has been intensively focused on growing our membership. She has made impressive strides in attracting new voices into our camp. Over the past year, Leslie personally recruited more than 60 new members. Leslie provides an outstanding example of what one member can accomplish. Imagine how much stronger we would be if we could get more people like her engaged in this effort. Are you ready to become a leader like Leslie? It begins with taking a “step up” the membership ladder. if you are a regular member, I invite you to become an EAGLE member to take your commitment to a higher level. If you are already an EAGLE, please consider raising your level of commitment. Then find a few lawyers in your community who do personal injury work but are not FJA members and recruit them. You know who these lawyers are. You pass their billboards every day on the way to your office. Find a way to bring them in to help us. We are blessed as an organization that our members are key leaders in every community in Florida. You are the “go-to” people who help shape the direction of our state. We need you to reach out to even more civil justice advocates from every part of our state to join the Florida Justice Association and take a deep dive into the good work we do together.


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305-666-8883 www.FloridaJusticeAssociation.org | May/June 2017 | 9


SPECIALFOCUS:2017-18FJAPRESIDENTDALE SWOPE

POSITIONED TO MAKE HISTORY MEET FJA’S NEW PRESIDENT DALE SWOPE

by Ryan Banfill, FJA Communications Director

L

eft tackle. In football, outside of the quarterback, it’s the key position on the offensive side of the ball. The position is vital to success on every offensive play. Every time the quarterback drops back to pass, it’s the tackle’s job to protect the quarterback’s blind side from the oncoming rush. In the early 1970s, Dale Swope played left tackle for the Hillsborough High School Terriers. The team went 7-2 under legendary Coach Billy Turner in 1971, Swope’s senior year. It was on the practice fields at Hillsborough High where young Swope learned the importance of teamwork, leadership, persistence and preparedness. Swope continues to carry a passion for football. He says if he had not become an attorney, he would be a high school football coach. “If you think about it, there is an awful lot in common between what coaches do and what we (attorneys) do,” Swope said in a 2016 interview. “We are both engaged in a clear adversarial process. At the end of the day we are going to either be the winner or the loser, and the loser will not get a participation trophy. Both of us spend a great deal more time in planning and preparation than in our actual ‘games.’ The time and hard work invested in preparation in the weight room, practice field, or witness preps will pay off on game day.” 10 | May/June 2017 | www.FloridaJusticeAssociation.org

The values instilled in Dale at home by his family and reinforced on the practice field are the same ones that would vault him into Florida’s elite level of attorneys. Tampa Roots On April 6, 1954, singer Perry Como’s “Wanted” was climbing the national charts, and Dale Swope was born to his mother Betty and father Morris. Dale grew up in Tampa with his brother, Keith and sister, Sandi. Swope’s father founded the Tampa Roofing Company in 1950. It remains a family-owned business that’s been a fixture in the community for more than 60 years. The Swope family involvement in roofing and construction goes back to Dale’s maternal grandfather. “Bob Rentz is part of the immigration that nobody even thinks about. It’s kind of a redneck immigration that came down from Alabama and Georgia,” Swope remembered, crediting his grandfather for being the reason why he’s in Tampa. “He came down around World War I to work in the shipyards for purely economic reasons. Because there was huge opportunity in the shipyards and he had been brought up on a farm in a sharecropper arrangement.”


Swope’s grandfather came to Tampa from the South Georgia town of Sparks and was one of 20 children. Swope’s grandmother had 14 brothers and sisters. “He really was one of the best hard-working guys I’ve ever known. He moved his family into the unfinished house and finished it with his hands,” Swope said as he recalled how during the depression his grandfather bought a property in Tampa. “They had cows and he was the guy who would deliver milk to your house. That’s kind of how they made a living. That and he raised what he needed.” Next door, Swope’s grandfather started the Rentz Roofing Company in 1936. This smartly positioned him well for the post-war construction boom. Just after World War II, Swope’s father was stationed at MacDill Air Force Base. This was shortly after the U.S. War Department had decided to put a base in the Tampa Bay area. A native of Birmingham, Alabama, Morris met his future wife, Betty June Rentz, through what son Dale calls a “get rid of your daughter program” at her Baptist Church. “He (Swope’s father) marries my mom and ends up in the roofing business. So, we move into the same city block where my grandfather started this whole thing. And then my grandfather started a diner on Hillsborough and 17th Street called Rentz Diner, and it was there probably for 40 years.”

When Dale was born, the family built a house in the block where his grandfather’s farm was located. His grandfather built a larger house and his aunt moved across the street – effectively establishing a family compound in the neighborhood. Swope’s father – who just turned 90 years old – remembers Dale being “accident-prone” when he was young. “He was out someplace he wasn’t supposed to be one night and he came running home. We had a chinaberry tree in our side yard and he ducked to go under a limb, and didn’t go low enough, and pulled his nose off his face and bit a hole through his tongue and through his lip, too,” the elder Swope recalls. “He was bleeding like crazy and comes into my bedroom in the middle of the night and says, ‘Dad, I think I hurt myself.’” On top of building a successful business and becoming a leader in the roofing industry, Swope’s father holds the distinction of being the first person to successfully pass the State of Florida’s licensing test, making him the first roofing contractor to be certified by the State of Florida. Swope’s brother Keith went into the family business in 1971 and is now the president of the company. His father is retired from the day-to-day operation of the roofing business but remains active as a consultant in the industry.

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SPECIALFOCUS:2017-18FJAPRESIDENTDALE SWOPE

Instead of going into the family business, Dale chose a different path. “He spent a couple of summers out helping me (on roofing jobs) and he knew right away that was not for him,” Swope’s father remembers, lauding his son’s independence. “He did a lot of stuff on his own.” After earning his bachelor of arts degree from the University of South Florida, Swope attended the University of Florida Law School. He graduated in 1978 and went into private practice. Starting a Successful Practice Swope started a solo practice six months out of law school in 1979. The firm has grown into one of Florida’s most prestigious civil trial practice firms, Swope Rodante P.A. Swope is managing partner of the 50-employee firm that has offices in Tampa and Decatur, Georgia. It’s also where he met his wife, DD Ross. The couple married in 1988 and have two sons, Dustin, 24 and Carson, 19.

He leads a firm that has made its mark by taking on cases with cutting-edge legal issues at both the trial and appellate levels, catastrophic personal injuries or wrongful death, insurance coverage disputes, and both first-party and third-party insurance bad faith actions. “I had the exceptional good fortune to discuss these concerns with true legends of our profession like Lefferts Mabie, Jr, and Al Cone, who proved by example that, while practicing in bulk may be one way to be successful, it certainly is not the only way,” Swope said in 2016.“The fact is you can also be as successful as you want by focusing only on a few cases and ensuring that through your ingenuity, creativity, and hard work, you maximize the recovery of each one of those cases. It involves getting to know your clients, your documents, and your witnesses. It involves really coming to know the law and staying on top of its development, by being a lawyer, not a claim processor with a law degree.”

“A lot of things make Dale unique and one of them is his intellect and his ability to see things and patterns that would escape the average person,” said Angela Rodante, partner in the Swope Rodante P.A. law firm. “He is fascinating to work with because he is always the hardest working person on the team. No matter his position on the team, whether or not he’s the lead lawyer or the fourth lawyer, he’s always the hardest working person. Usually the smartest and hardest working person on the team.”

Swope Rodante has grown accustomed to big victories. To mark those events, the firm flies a large blue and red flag over its Ybor City building on a flag pole that historically has served as a lightning rod for the building. “We fly the firm flag when we have great successes; when we have succeeded in a long battle for a client. Usually it implies a great victory at trial, a victory at appeal, a recovery of an excess judgment, or sometimes we fly it when we have forced an opposing party to pay our attorney’s fees,” Rodante explained. “It didn’t take long for word to get out, and Dale and I often receive phone calls from politicians and charities when the firm flag is flying.”

Swope maintains an AV rating from Martindale-Hubbell, the nation’s oldest legal reviewing agency. He also has been designated as a ‘Super Lawyer’ by Super Lawyers Magazine and is listed in ‘Best Lawyers in America,’ ‘Who’s Who in the South’ and ‘Who’s Who in American law.’

Swope has been an active leader in the profession. He founded, and served in 1991-1992 as the first Chairman of, the Hillsborough County Solo Practitioners Committee. The committee supports and guides solo practitioners as they develop the skills necessary to practice law effectively.

12 | May/June 2017 | www.FloridaJusticeAssociation.org


Swope is also a passionate advocate for holding insurance companies accountable when they act in bad faith, and he has argued long and hard against repeated legislative efforts to weaken Florida’s bad faith laws. Commitment to Historic Preservation With a love for Tampa history, Swope bought the old Florida Brewing Company building at 1234 Fifth Avenue with his wife, DD, and their building partner, Joe Kokolakis, and carefully refurbished the property, turning it into a stunning home for Swope Rodante, P.A. The site has a rich history, reflecting the emergence of Tampa as a key part of Florida. It was the first brewery in the Southern U.S. and stood at the center of the growth of early Tampa, from its opening, through prohibition, and up until the current day. The building was once the tallest in the state and even served as a nuclear fallout shelter during the Cold War. Restoring the building was a labor of love for Swope. It also was a family project as wife DD took charge of the interior design for the renovation. There are legendary stories involving the building. During the opening day at the Brewery, with free beer flowing (because they thought it was so pure it couldn’t make a person drunk), a Cuban man was killed during a drunken fight over beer. Legend says the man’s ghost now haunts the building. “We’ve got a great ghost. We’ve got the friendliest ghost in Tampa because he’s drunk,” Swope said in 2013 during an interview on The Tampa Natives Show. “We’ve never seen the man but we hear his voice. He doesn’t speak English. We believe he speaks Spanish and he’s drunk.” Swope’s eyes light up and he gets animated when he proudly speaks about the history of the brewery and the restoration of the historic building. “It didn’t really look like any other building in Ybor City. Growing up here (in Tampa) I always knew where that building was because it was near Eagle Roofing, where my brother and I went with my dad a lot,” Swope remembered. “It really was the only part of Mr. Ybor’s estate that had nothing to do with rolling cigars.” Despite having an “echo issue,” Swope said, “It’s awesome to come to work there every day.” “If you look in the mortar between the brick – a lot of the places, we had to make openings that didn’t exist, so they saw cut straight through the section of the brick. It’s not like a brick building you see now where they have a concrete block inside and then bricks on the outside. When they cut through you can see the mortar that hasn’t been exposed in 100 years, in the mortar you can see little twigs and sticks that have been stuck in there from the time the original builders touched it.” Swope, Rodante and Kokolakis restored another historic Ybor brick building known as The Bunker. This building had been a fixture in Ybor City since 1924. Swope worked to return the abandoned building to its proper place as a popular spot for the community to gather

and today the building houses Tre Amici @ the Bunker, a café that has been fondly dubbed as “Ybor City’s living room.” Swope is so proud of the venture, now run by his wife, DD, there is an advertisement for it on a race car he enjoys driving. “That’s just an example of Dale having a vision for something and it being four brick walls, no floor and a bombed-out roof. Now it’s a functioning coffee and wine bar,” Rodante said, noting how the restaurant has become a gathering place for residents and organizations. Swope and Rodante also established Save Tampa History to help Ybor City’s business and residential community flourish. With an eye on fostering the life of the community by bringing families back to the area and providing them with appropriate housing, the program renovates area casitas and leases them to responsible families in need. The Ybor City Museum Society recognized him with the Vicente Martinez-Ybor Award for his work to create a diverse community through social commitment and personal enterprise. Giving Back to the Team Evidenced by his commitment to preserving Tampa’s history, Swope remembers those who have been important in his life and the life of his family. With two sons who followed their father’s lead and played on the Hillsborough High School football team, he’s been deeply involved in helping his high school alma mater compete with larger, better-financed schools. Through his involvement with the Hillsborough High School Football Trust, Swope has worked to raise critically needed funding for the Terrier football team so players can have better uniforms, improved safety equipment and other valuable resources necessary for them to compete with better-funded teams. “Dale has given us money, but what he’s done is [he’s] given us hope. That’s the main thing,” said Hillsborough High School Head Football Coach Earl Garcia, Jr. In recognition of his commitment, in the Summer of 2016 Coach Garcia delivered good news to Swope--he had become the newest member of the school’s Football Hall of Fame. Swope, whose uniform number 53 also has been retired, was deeply moved. He also took an opportunity to stress the key role coaches played in his life and in the lives of others. “I’m not going to say it’s always easy to write a check, but that’s a heck of a lot easier than being out here every single day, the way that you guys are and your coaches of this team that are just here year after year. That’s an honest to God sacrifice,” Swope told the team’s coaches and supporters in 2016. “There is no way to overstate how important a coach is to a young man’s life. I say things my coaches used to say. I pronounce, or mispronounce, words the way they used to mispronounce them. And you guys are having that effect every day on the young men who need you more than anything else. There is no other person that can change their life like you guys can.” Dale Swope carries the heart of a head coach into his term as FJA president, bringing a positive and inspirational approach with big goals combined with a healthy respect for tradition.

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SPECIALFOCUS: 2017LEGISLATIVEWRAP-UP

SESSION OVERVIEW 2017

by Kenneth D. Kranz, Editor in Chief

INTRODUCTION

2017 SESSION OVERVIEW The level of bill filing activity this year was up quite a bit from last year with a total of 3,052 bills filed (950 Senate bills and 2102 House bills), the most of any session in the past 16 years. This significant increase is mainly due to the new House requirement that a bill must be filed for any appropriations request. Of the 3,052 bills filed, 249 eventually passed both chambers for a passage rate of 8.2%, which is the lowest percentage of filed bills passing both chambers in that same time frame. In 2015 the passage rate was 13.2% of filed bills, and in 2016 the passage rate was 15.4%. In any event, this year the FJA was once again faced with the usual array of legislative attacks on the civil justice system, including serious threats in the areas of workers’ compensation and property insurance. And, once again, the FJA was successful in stopping or neutralizing these attacks. CLAIM BILLS This year the legislature was much more generous to claimants seeking relief than it has been in recent years. To put this in context, recall that after the 2013-2014 logjam, when no claim bills at all were passed, 14 bills totaling approximately $15.3 million passed in 2015 and only four bills totaling approximately $2.5 million passed in 2016. This year 57 claim bills representing 29 separate claims were filed in both chambers. Of these, 13 bills passed, six against the state and seven against local governmental entities, granting relief to claimants totaling $25.7 million. The largest amount provided to a single claimant was $4.7 million to a high school junior who suffered a serious brain injury when a large truck tire he was inflating in auto shop class exploded. Note that, as of this writing, final action by the Governor is still pending on virtually all of these bills. FOR MORE INFORMATION The bill summaries herein were excerpted from the post-Session 2017 Bill Summaries prepared by the staff of the Florida Senate. That complete document, which contains summaries of all the bills that passed this year, can be found at http://www.flsenate.gov/ Committees/BillSummaries/2017/. Copies of all bills, amendments, legislative staff analyses, and complete legislative history including archived video or audio recordings of floor proceedings and many committee meetings can be found at www.flsenate.gov and www. myfloridahouse.gov. 14 | May/June 2017 | www.FloridaJusticeAssociation.org

The enacted bills that are most likely to be of interest to practitioners are summarized below by subject area (within categories bills appear in numerical sequence); failed bills of interest are also listed. AUTO/PIP Notable auto-related issues that failed to pass include: Mandatory Bodily Injury Insurance Coverage and PIP Repeal (HB 1063/SB 1766); PIP Repeal w/bad faith (HB 461); PIP Repeal (SB 156); Bicycle Safety/ Vulnerable Road Users (HB 541/SB 432 and SB 408); Autonomous Vehicles (HB 725/SB 1066); Use or Operation of a Drone by Certain Offenders (HB 939/SB 1122); Personal Delivery Devices (HB 601/SB 460). Children Obtaining Driver Licenses; Ch. 2017-8, Laws of Fla. (CS/SB 60 by Children, Families, and Elder Affairs Committee and Sens. Bean, Rodriguez, and Stargel); approved by Governor; effective May 1, 2017. This bill addresses children in foster care obtaining driver licenses. The bill removes the pilot status of the program that provides funding to pay the cost for driver education, licensure, and motor vehicle insurance for children in out-of-home care and expands eligibility for the program to children who are in relative and nonrelative placements. In addition, it allows children to continue receiving benefits for up to six months after having achieved permanency or turning 18 years of age. The bill requires the child’s transition plan and the court to address the issue of a child in care being able to obtain a driver license. The bill also provides that a guardian ad litem, when authorized by a minor’s caregiver, may sign for the minor’s learner’s driver license and not assume any obligation or liability for damages caused by the minor. Transportation Network Companies; Ch. 2017-12, Laws of Fla. (CS/HB 221 by Government Accountability Committee; and Reps. Sprowls, Grant, J., and others); approved by the Governor; effective July 1, 2017. The bill creates statewide requirements for transportation network companies (TNCs). Transportation network companies use smartphone technology to connect individuals who want to ride with private drivers for a fee. The bill preempts any local ordinances or rules on TNCs and provides that state law will regulate TNCs. The bill prohibits local governments from imposing taxes, licensing requirements, or other restrictions on TNCs. The bill provides minimum insurance requirements for TNCs and TNC drivers. When a TNC driver is logged onto the digital network but not engaged in a prearranged ride, the bill requires: primary automobile liability coverage of at least $50,000 for death and bodily injury per person, $100,000 for death and bodily injury per incident, and $25,000 for property damage; personal injury protection (PIP)


benefits that meet the minimum coverage amounts required by law; and uninsured and underinsured vehicle coverage as required by law. When a TNC driver is engaged in a prearranged ride the bill requires: primary automobile liability coverage of at least $1 million for death, bodily injury, and property damage; PIP benefits that meet the minimum coverage amounts required of a limousine; and uninsured and underinsured vehicle coverage as required by law. The bill authorizes an automobile insurer not providing TNC insurance to exclude coverage provided to an owner or operator of a TNC vehicle while driving that vehicle if logged on to the digital network or providing a prearranged ride. The bill requires the TNC to conduct, or have a private third party conduct, a local and national criminal background check on its drivers every 3 years, and a driving record check once when the person applies as a TNC driver. The bill prohibits the TNC from hiring a person as a TNC driver if he or she has been convicted of certain crimes or a certain number of moving violations. To ensure that the TNC has complied with the requirement of background checks, the bill requires the TNC to submit an examination report prepared by an independent certified public accountant to the Department of Financial Services and provides for penalties if the TNC fails to comply with the background check requirements. The bill requires a TNC to implement a zero tolerance policy on the use of drugs and alcohol by its drivers, and to suspend a driver during the length of an investigation, if a rider registers a complaint of drug or alcohol use. All TNCs must adopt policies on nondiscrimination and disability access. In addition, the bill: requires a TNC to maintain an agent for service of process; requires a TNC to disclose information on fares to riders before the beginning of prearranged rides; requires a TNC driver to carry proof of insurance; requires a TNC’s digital network to display a photograph of the TNC driver and the license plate number of the TNC vehicle; provides that TNC drivers are independent contractors if certain conditions are met; prohibits TNC drivers from accepting rides for compensation outside of the TNC’s digital network and from soliciting or accepting street hails; and requires TNCs to maintain records on riders and TNC drivers. Prohibited Insurance Acts (CS/CS/CS/HB 1007 by Commerce Committee; Government Operations and Technology Appropriations Subcommittee; Insurance and Banking Subcommittee; and Reps. Raschein, Diamond, and others); if approved by the Governor, these provisions take effect upon becoming law. Among many other things, the bill allows motor vehicle insurers an exemption from the requirement that they inspect each private passenger motor vehicle before issuing an insurance policy that provides coverage for physical damage. The inspection requirement only applies in counties with a 1988 population of 500,000 or greater. The bill requires insurers using the exemption to file a manual rule with the OIR and allows an insurer to file with the OIR their own preinsurance inspection requirements before insuring a private passenger motor vehicle. Unmanned Devices (CS/HB 1027 by Transportation and Infrastructure Subcommittee and Rep. Yarborough and others); if approved by the Governor, these provisions take effect July 1, 2017. Personal Delivery

Devices: The bill establishes a regulatory framework for personal delivery devices (PDDs), creating definitions and approved operating parameters in ch. 316, F.S., the Florida Uniform Traffic Control Law. It amends s.316.008, F.S, to authorize PDD operation in the absence of a local prohibition and authorizes local governmental entities to regulate operation of PDDs within county or municipal jurisdictions under certain conditions. PDDs are treated like pedestrians by the bill and are specifically excluded from the definition of motor vehicles and the attendant registration and insurance requirements in ch. 320, F.S. The bill also amends ss. 324.021(1) and 324.022(2)(a), F.S., to provide that PDDs are not motor vehicles for purposes of the Motor Vehicle Financial Responsibility Law. The bill requires a person who owns and operates a PDD to maintain an insurance policy, on behalf of himself or herself and his or her agents, that provides general liability coverage of at least $100,000 for damages arising from PDD operation. Drones: The bill also creates s. 330.41, F.S., the “Unmanned Aircraft Systems Act.” It preempts local governments from regulating the operation of unmanned aircraft systems, but does allow them to enact or enforce local ordinances relating to illegal acts arising from the use of unmanned aircraft systems if the ordinances are not specifically related to the use of a drone for the commission of the illegal acts, and it specifies certain prohibited activities and exemptions. Other auto-related bills that passed include: Motor Vehicle Service Agreement Companies (CS/HB 339 by Insurance and Banking Subcommittee; and Rep. White), effective July 1, 2017, if approved. COURT SYSTEM, PROCEDURE, DAMAGES & EVIDENCE Notable issues that failed to pass include: Term Limits of Supreme Courts Justices and DCA Judges (HJR 1/SB 482); Legislative Review of Judicial Ruling Declaring a Legislative Act Void (HJR 121/SB 1098); Prejudgment Interest (HB 469/SB 334); Attorney’s Fees/Administrative Proceedings (HB 997/SB 996); Limitations in Medical Payments (HB 537/SB 384 and HB 583/SB 146); Tobacco Settlement Agreements (HB 6011/SB 100). Court Records (CS/HB 441 by Civil Justice and Claims Subcommittee and Rep. Diamond); if approved by the Governor, these provisions take effect July 1, 2017. This bill grants immunity from liability to the clerk of court for releasing confidential information from a court record which the filer failed to disclose to the clerk. The liability protections apply to the release of any information made confidential by court rules. GENERAL TORT, PRODUCTS LIABILITY & CONSUMER Notable issues that failed to pass include: Unsafe Tires (HB 801/SB 380); Furnishing Alcoholic Beverages (HB 983/SB 1254); Civil Action/Victims of Human Trafficking (HB 1165/SB 972). Civil Remedies for Terrorism (HB 65 by Reps. Fischer, White and others); if approved by the Governor, the provisions take effect on July 1, 2017. The bill creates a civil cause of action for a person who is injured by an act of terrorism or by a violation of a law that facilitates or furthers an act of terrorism. A prevailing plaintiff is entitled to a minimum of $1,000 in damages or three times the actual damages sustained, and reasonable attorney fees and court costs at the trial and appellate levels. In contrast, a defendant is entitled to recover www.FloridaJusticeAssociation.org | May/June 2017 | 15


SPECIALFOCUS: 2017LEGISLATIVEWRAP-UP reasonable attorney fees and court costs at the trial and appellate levels if it is determined that the claimant raised a claim that is not supported by the facts or law. Anyone who participates in the act of terrorism and is injured may not bring a claim under the cause of action authorized by the bill.

defines completion of the contract as the “later of the date of final performance of all the contracted services, or the date that final payment for those services becomes due” in order to prevent a customer’s delay in making a required payment from extending a contractor’s liability for construction defects.

Public Records (CS/CS/SB 80 by Judiciary Committee; Community Affairs Committee; Sens. Steube, Garcia, and Campbell); if approved by the Governor, these provisions take effect upon becoming a law. The bill requires a court to award attorney fees and costs to a plaintiff who sues an agency to enforce a public records request if the court determines that the agency unlawfully refused access to a public record and the plaintiff provided written request for the public records to the agency’s records custodian at least five business days before filing the lawsuit. The plaintiff is not required to provide written notice if the agency does not post the records custodian’s contact information in the agency’s primary administrative building and on the agency’s website. A court must also determine if a plaintiff requested records or otherwise participated in an enforcement action for an improper purpose. An improper purpose is one in which a person requests records primarily to cause a violation of the public records law or for a frivolous purpose. If the court finds that a plaintiff requested records for an improper purpose, the court will require the plaintiff to pay the agency’s attorney fees and costs. The bill clarifies that it does not create a private right of action, and a court may only require an agency to pay attorney fees and costs directly related to the public records enforcement action. Provisions in the bill apply only to public records requests made on or after the effective date of the act.

Application of the Florida Deceptive and Unfair Trade Practices Act to Credit Unions (CS/HB 1347 by Insurance and Banking Subcommittee and Rep. Jones); if approved by the Governor, these provisions take effect July 1, 2017. The bill exempts credit unions licensed under ch. 657, F.S., from part II of ch. 501, F.S., known as the Florida Deceptive and Unfair Trade Practices Act. Other entities currently exempt from the act include licensed banks and savings and loans associations.

Drug Overdoses (CS/CS/HB 249 by Health and Human Services Committee; Health Quality Subcommittee; and Reps. Rommel, Lee, and others); if approved by the Governor, these provisions take effect October 1, 2017. The bill requires hospitals with emergency departments to develop best practice policies that focus upon the prevention of unintentional drug overdoses and authorizes the voluntary reporting of a suspected or actual overdose of a controlled substance to the Department of Health (DOH) by basic and advanced life support service providers that treat and release, or transport, a person in response to an emergency call. Among other things, the bill provides that no new cause of action is created by requiring hospitals with emergency departments to develop policies to promote the prevention of unintentional overdoses. A reporter is also exempt from civil or criminal liability for reporting, if the report is made in good faith. The bill provides that failing to make a report is not grounds for licensure discipline. Limitations on Actions Other Than for Recovery of Real Property (CS/CS/HB 377 by Judiciary Committee; Civil Justice & Claims Subcommittee; Rep. Leek and others); if approved by the Governor, these provisions take effect July 1, 2017. Existing s.95.11(3)(c), F.S., specifies the 4-and 10-year limitations periods or statutes of repose for bringing an action alleging a construction defect or latent construction defect. In some cases, the limitations periods begin on the “date of completion ... of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer.” Completion of the contract, according to an appellate court opinion, requires the completion of construction and the submission of the final payment required by the contract. The bill 16 | May/June 2017 | www.FloridaJusticeAssociation.org

INSURANCE—BAD FAITH, PROPERTY & MISC. Notable issues that failed to pass include: Assignment of Insurance Benefits (SB 1218/SB 1038/HB 1421); Insurance Rates/Fees & Expenses May Not be Included in Insurer’s Rate Base (SB 1684); Insurer Solvency (HB 1273/ SB 1242); Surplus Lines Insurance (HB 191/SB 208). Florida Life and Health Insurance Guaranty Association (CS/HB 307 by Insurance and Banking Subcommittee and Rep. Drake); if approved by the Governor, these provisions take effect July 1, 2017. The bill revises coverage provisions relating to the Florida Life and Health Insurance Guaranty Association, which was created in 1979 to protect policyholders against failure in the performance of contractual obligations under life and health insurance policies and annuity contracts due to the impairment or insolvency of the member insurer that issued the policies or contracts. Effective January 1, 2020, the bill increases the coverage limits for basic hospital expense health insurance policies, basic medical-surgical health insurance policies, and major medical expense health insurance policies from $300,000 to $500,000 for any one person. Further, the bill expands the association’s scope of coverage to include annuities issued by an insurer pursuant to an individual retirement annuity and annuities issued by an insurer and held by a third party custodian or trustee pursuant to an individual retirement account. Insurance Policy Transfers; Ch. 2017-19, Laws of Fla. (CS/CS/HB 805 by Commerce Committee; Insurance and Banking Subcommittee; Rep. Ingoglia); approved by the Governor; effective July 1, 2017. The bill allows the transfer of a personal lines residential or commercial residential policy as a renewal if the authorized insurer to which the policy is being transferred: is admitted in this state and other states; is writing residential property insurance in multiple states; is not converting the policy to a surplus lines policy; and has been determined by the Office of Insurance Regulation to have the same or better financial strength than the transferring insurer. The policyholder of the policy being transferred must be selected on a nondiscriminatory basis. The authorized insurer to which the policy is being transferred must provide a notice of change in policy terms to the policyholder. The notice must include notice of the policy transfer and the authorized insurer’s financial rating and must be provided to the insured at least 60 days before the effective date of the transfer. The transfer must result in substantially similar coverage and the Office of Insurance Regulation must approve the transfer.


Insurer Insolvency (CS/CS/HB 837 by Commerce Committee; Insurance and Banking Subcommittee; Rep. Raburn); if approved by the Governor, these provisions take effect July 1, 2017. The bill amends Florida’s Insurers Rehabilitation and Liquidation Act to include various provisions from the National Association of Insurance Commissioners’ “Insurer Receivership Model Act.” Among other things, the bill: provides exclusive jurisdiction to the circuit court in Leon County over all assets and property of an insurer in receivership, whether or not such assets or property are located outside of Florida; limits certain defenses which may be raised by third parties in actions brought by or against the DFS in its capacity as receiver; limits third parties from asserting or raising obligations, claims, and defenses which were not recorded in the records of the insurer in receivership, with certain exceptions; allows the court more flexibility in approving procedures for the “deemed filing” of claims, or claims where the DFS deems a claim filed and can distribute funds, such as a refund of unearned premium, to the claimant without the need of a formal claim; allows the court to set a deadline for the filing of claims; and disallows claims for post-judgment interest accrued after the liquidation date. Prohibited Insurance Acts (CS/CS/CS/HB 1007 by Commerce Committee; Government Operations and Technology Appropriations Subcommittee; Insurance and Banking Subcommittee; and Reps. Raschein, Diamond, and others); if approved by the Governor, these provisions take effect upon becoming law. The bill creates various new requirements for insurance companies relating to insurance fraud prevention and reporting. The bill requires all insurers to adopt an anti-fraud plan and to establish and maintain a designated anti-fraud unit within the company to investigate possible fraudulent insurance acts or contract with others to investigate fraudulent insurance acts. The insurer must electronically file with the Department of Financial Services (DFS) a detailed description of the designated anti-fraud unit or a copy of the contract with the company that investigates fraudulent insurance acts for the insurer and a copy of the anti-fraud plan. This filing must be made annually on or before December 1, starting in 2017. The bill specifies elements that the anti-fraud plan must include and beginning in 2019, requires every insurer to annually submit specified anti-fraud statistics to the DFS by March 1 for the lines of business written by that insurer for the calendar year. This bill requires all insurers to provide reports and modifies current reporting requirements for workers’ compensation insurers. The bill requires the DFS to create a report detailing best practices for the detection, investigation, prevention, and reporting of insurance fraud and other fraudulent insurance acts. The report must be updated at least every two years. The bill requires the DFS to collect data from each state attorney office that receives appropriations to fund prosecutor positions to prosecute insurance fraud cases. The state attorneys must provide specified data to the DFS each quarter and the DFS is required to report to the Executive Office of the Governor, President of the Senate, and Speaker of the House of Representatives each year. The bill provides that a health maintenance organization authorized to exclusively market, sell, or offer to sell Medicare Advantage plans shall be actively engaged in managed care with 24 months after licensure in order to maintain its certificate of authority. The Office of Insurance Regulation (OIR) may extend the period upon written request.

The bill makes stranger-originated life insurance (STOLI) contracts void and unenforceable and allows a life insurer to contest a policy obtained through a STOLI practice, notwithstanding that life insurance contracts cannot be contested two years after issuance. A stranger-originated life insurance practice is an act, practice, arrangement or agreement to initiate a life insurance policy for the benefit of a third party investor who has no insurable interest in the insured at policy origination. The bill makes void and unenforceable viatical settlement contracts subject to a loan secured by an interest in the insurance policy within five years from the issuance of the underlying insurance policy. This is referred to as the contestability period of the viatical settlement contract. The bill otherwise retains the existing two year contestability period under current law. Current law provides conditions that, if met, allow the execution of a viatical settlement contract during the contestability period. The bill modifies the process for doing so. The viator must provide a sworn affidavit and accompanying independent evidentiary documentation to a viatical settlement provider certifying that the viator has met a statutory exception that allows viatication of a policy during the contestability period. Current law does not require the viator to execute a sworn affidavit with documentation evidencing that the exception applies. The bill also revises and clarifies some of the conditions that allow viatication during the contestability period. The bill adds as prohibited practices under the Viatical Settlement Act: engaging in a fraudulent viatical settlement act; engaging in a STOLI practice; knowingly entering into a viatical settlement contract before the application for or issuance of a life insurance policy that is the subject of the viatical settlement contract or within a contestability period unless the viator complied with s. 626.99287, F.S.; and knowingly issuing, soliciting, marketing, or promoting the purchase of a life insurance policy for the purpose of, or with an emphasis on selling the property to a third party. Violations are third-degree felonies if the insurance policy has a value less than $20,000; second degree felonies if the insurance policy has a value of $20,000 or more but less than $100,000; and first-degree felonies if the insurance policy has a value of $100,000 or more. The bill also allows motor vehicle insurers in certain counties an exemption from the requirement that they inspect each private passenger motor vehicle before issuing an insurance policy that provides coverage for physical damage. Other insurance-related bills that passed include: Regulation of Insurance Companies (CS/HB 359 by Commerce Committee; Rep. Santiago), effective upon becoming a law if approved; Flood Insurance (CS/CS/HB 813 by Commerce Committee; Insurance and Banking Subcommittee; Rep. Lee), effective July 1, 2017, if approved; Insurance Adjusters (CS/CS/HB 911by Commerce Committee; Insurance and Banking Subcommittee; Rep. Shaw), effective January 1, 2018, if approved. MEDICAL MALPRACTICE & HEALTH CARE-RELATED Notable issues that failed to pass include: Direct Primary Care Agreements (HB 161/SB 240); Cost of Medical Records (HB 569/SB 826); Villazon/

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SPECIALFOCUS: 2017LEGISLATIVEWRAP-UP

HMO Liability (HB 675/SB 262); Fail First Protocols (HB 877/SB 530); Access to Health Care/ “Super Nurses” (HB 7011); Payment of Health Care Claims (HB579/SB 102).

be reasonably accommodated by the facility. The bill also requires this right to be added to the summary of rights and responsibilities that health care providers must make available to patients.

Hospice Care (CS/CS/SB 474 by Children, Families, and Elder Affairs Committee; Health Policy Committee; and Sen. Grimsley); if approved by the Governor, these provisions take effect July 1, 2017. The bill amends and creates a section of the Florida Statutes related to the provision of hospice care. Among other things, it provides additional parameters under which a hospice is authorized to release a patient’s medical records.

Other medical malpractice & health care-related bills that passed include: Health Care Practitioner Licensure (CS/CS/HB 229 by Health and Human Services Committee; Health Quality Subcommittee; and Rep. Byrd and others), effective upon becoming a law, if approved; Medication Synchronization (CS/CS/SB 800 by Appropriations Committee; Banking and Insurance Committee; and Sens. Broxson and Mayfield), effective January 1, 2018, if approved.

Regulation of Health Care Practitioners (CS/CS/CS/HB 543 by Health and Human Services Committee; Health Innovation Subcommittee; and Rep. Pigman and others); if approved by the Governor, these provisions take effect upon becoming law, except as otherwise expressly provided in the act. The bill modifies provisions pertaining to nursing education programs and amends several statutes relating to other health care practitioners including ARNPs, pharmacists, orthotists, and physical therapist assistants.

NURSING HOME, ELDERLY & CHILDREN Notable issue that failed to pass include: Elder Abuse Fatality Review Teams (HB 703/SB 518).

Stroke Centers (CS/CS/CS/HB 785 by Health and Human Services Committee: Health Care Appropriations Subcommittee; Health Quality Subcommittee; and Rep. Magar and others); if approved by the Governor, these provisions take effect July 1, 2017. The bill requires the Agency for Health Care Administration (AHCA) to add “acute ready stroke center” as a new type of stroke center that can be operated by licensed emergency medical services providers. The Department of Health (DOH) is directed to contract with a private entity to establish and maintain a statewide stroke registry, subject to the availability of funds. The contract provider must use a nationally recognized platform to collect data on nationally recognized stroke performance measures and provide regular reports to the DOH. Each stroke center is required to regularly report to the statewide stroke registry information specified by the DOH. The bill provides that the registry’s purpose is to ensure that the data are maintained and available to improve or modify the stroke care system, ensure compliance with standards, and monitor stroke patient outcomes. The bill provides that no liability of any kind shall be created or enforced against any acute ready stroke center, primary stroke center, or comprehensive stroke center by reason of having provided such information to the statewide stroke registry. Rights and Responsibilities of Patients (CS/HB 1253 by Health and Human Services Committee and Rep. Harrison); if approved by the Governor, these provisions take effect July 1, 2017. The bill amends the Florida Patient’s Bill of Rights and Responsibilities to include the right for a patient to bring any person of his or her choosing to the patientaccessible areas of a health care facility or provider’s office while the patient is receiving inpatient or outpatient treatment or is consulting with his or her health care provider, with certain limitations. A patient may not bring another person if doing so would risk the health of the patient, other patients, or staff of the facility or office or doing so cannot

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Guardianship; Ch. 2017-16, Laws of Fla. (CS/HB 399 by Civil Justice and Claims Subcommittee and Reps. Diamond and Spano); approved by the Governor; effective May 9, 2017. The bill revises several aspects of Florida’s guardianship statutes relating to the determination of a person’s incapacity. It allows certain parties to challenge a report filed by an examining committee member; allows a guardian’s annual report on the incapacitated person over whom he or she has responsibility to be filed within a certain timeframe; allows a court to grant extraordinary authority for a guardian to initiate a ward’s divorce without the spouse’s consent; and removes the $6,000 cap on the amount a guardian may spend on a ward’s funeral and related expenses. The bill allows certain parties time to review examining committee reports and, if no challenge to the reports is filed with the court, then the report may be introduced into evidence. If a challenge to a report is timely filed with the court, then an examining committee member must attend the hearing to testify about the contents of the report. Other nursing home, elderly & children bills that passed include: Child Protection (CS/HB 1269 by Health Quality Subcommittee and Rep. Harrrell); effective July 1, 2017, if approved. WORKERS’ COMPENSATION Notable issues that failed to pass include: Workers’ Compensation – Comprehensive Reforms (HB 7085/SB 1582). Public Records/Workers’ Compensation (CS/CS/HB 1107 — by Commerce Committee; Insurance and Banking Subcommittee; and Rep. Albritton); if approved by the Governor, these provisions take effect July 1, 2017. The bill creates a public records exemption for personal identifying information of an injured or deceased employee contained in reports, notices, records, or supporting documentation held by the Department of Financial Services (DFS) pursuant to ch. 440, F.S. “Personal identifying information,” means the injured or deceased employee’s name, date of birth, home, mailing, or e-mail address, or telephone number. The bill authorizes the DFS to disclose personal identifying information made confidential and exempt only to certain enumerated persons and in certain circumstances.


CASES&COMMENTARIES

In Brief by Kenneth D. Kranz FJA JOURNAL EDITOR-IN-CHIEF

T

he Supreme Court held that federal law does not implicitly preempt state law tort claims of strict liability and negligence by Engle progeny plaintiffs. R.J. Reynolds Tobacco Company v. Marotta, So.3d , 42 FLW S410 (Fla. 4-6-2017). The Court rephrased a certified question from the Fourth DCA to eliminate the suggestion that the Engle Phase I findings were based on the mere sale of cigarettes. “[A] lthough Reynolds insists that Engle imposed liability for the sale of ordinary cigarettes containing nicotine, the records in both Engle and Marotta do not support this argument. While the Engle jury did make findings based on the inherent addictiveness and carcinogenic nature of cigarettes containing nicotine, such findings were not the sole basis of liability. Instead, the record in Engle reflects that the claims were grounded in allegations that Engle defendants deliberately manufactured their products to increase the likelihood of addiction, despite defendants’ knowledge of the hazards of nicotine, and that Engle plaintiffs suffered disease and death as a result of their inability to quit.” The Court also quashed the Fourth DCA’s determination that the plaintiff was precluded from seeking punitive damages as the decision below predated the Court’s decision to the contrary in Soffer v. R.J. Reynolds Tobacco Co., 187 So.3d 1219 (Fla. 2016). The FJA, represented by Celene H. Humphries, Maegen P. Luka and Thomas J. Seider, participated as Amicus Curiae. In a 4-3 decision, the Supreme Court held that the attorney-client privilege protects a party from being required to disclose that his or her attorney referred the party to a physician for treatment. Worley v. Central Fla. Young Men’s Christian Ass’n, Inc., So.3d , 42 FLW S443 (Fla. 4-13-2017). The issue arose out of a “routine trip and fall case” during which the defendant repeatedly attempted to discover the relationship between the plaintiff’s law firm and her treating physicians. The Court noted that in the case below the Fifth DCA relied on district court decisions that have held that the financial relationship between a law firm and a plaintiff’s treating physician is discoverable, pursuant to the Court’s decision in Allstate Ins. Co. v. Boecher, 773 So.2d 993 (Fla. 1999), if evidence of a referral relationship can be shown. Noting that Boecher dealt with a party’s relationship with an expert, but that since then the district courts have extended Boecher to allow discovery of the financial relationship between law firms and treating physicians, the Court announced that it disagreed with the reasoning of those decisions. It found that “the relationship between a law firm and a plaintiff’s treating physician is not analogous to the relationship between a party and its retained expert” and that “the question of whether a plaintiff’s attorney referred him or her to a doctor for treatment is protected by the attorney-client privilege.” The court quashed the decision of the Fifth DCA and approved the Second

DCA’s conflicting decision in Burt v. Government Employees Ins. Co., 603 So.2d 125 (Fla. 2nd DCA 1992). The FJA, represented by Andrew A. Harris, participated as Amicus Curiae. The Supreme Court disciplined a judge in the Ninth Circuit who, when running for judicial office in 2014, circulated a campaign advertisement that knowingly misrepresented a 20-year-old newspaper endorsement that she had received when she was running for re-election to the Florida House of Representatives, which made it appear incorrectly that she had received the newspaper’s current endorsement for the judicial office. Inquiry Concerning a Judge No. 14-488 Re: Kimberly Michele Shepard, So.3d , 42 FLW S528 (Fla. 5-42017). The selectively edited quote from the newspaper did not indicate when the statement was made or that it applied to a House race, and there was evidence that the advertisement containing the quote was circulated after the newspaper had announced its endorsement of her opponent. In ordering a public reprimand and 90-day suspension, the Court noted that the judge had not shown any remorse for her conduct, nor had she apologized or acknowledged her wrongdoing. In fact, the Hearing Panel concluded that she believed her opponent to be unworthy of judicial office and that any action she undertook to defeat him was justified. Ironically, in a separate disciplinary action issued the same day, another former House member received a one-year suspension from the practice of law followed by a two-year probation for repeated negligence in maintaining his trust account and other violations. The Florida Bar. v. Phillip J. Brutus, So.3d , 42 FLW S534 (Fla. 5-4-2017). All individuals have a right to have a judicial officer physically present at a hearing held to determine whether the individual may be involuntarily committed to a mental health facility or hospital pursuant to the Baker Act, §394.467, Fla. Stat., subject only to their consent to the contrary. Doe v. State of Fla., So.3d , 42 FLW S553 (Fla. 5-11-2017). “Likewise a judicial officer’s physical presence over such hearings is a constituent component of his or her ministerial duty to preside over a trial or evidentiary hearing.” In the present case, a single county court judge, in an email, declared a new policy that Baker Act hearings would be conducted remotely via videoconferencing equipment. Recognizing that individuals subject to commitment proceedings are among the State’s most vulnerable citizens and noting that the petitioners in the present case had objected to the use of such equipment and had not waived their right to the physical presence of judges at Baker Act proceedings, the Court stated that “judicial officers presiding over their hearings are required to appear in person, in ‘physical settings not likely to be injurious to the patient’s condition.’ §394.467(6)(a)2., Fla. Stat.” It instructed lower courts that should they “wish to implement and utilize new technology, then, at the very least, policies and procedures for such use should be adopted through a formal administrative order, subject to certiorari review in the appellate courts.” Because §409.910(6), Fla. Stat., allows the Agency for Health Care Administration to satisfy its Medicaid lien by seeking reimbursement from “third party benefits,” the bad faith portion of a settlement obtained in a coverage dispute with the insured’s uninsured motorist carrier was available to satisfy the lien. Willoughby v. Agency for Health Care Administration, So.3d , 42 FLW D570 (Fla. 2nd DCA 3-10-2017). The types of third party benefits that are available www.FloridaJusticeAssociation.org | May/June 2017 | 19


CASES&COMMENTARIES include benefits received from any “causes of action, suits, claims, counterclaims, and demands that accrue to the recipient or to the recipient’s legal representative, related to any covered injury, illness, or necessary medical care, goods, or services” for which Medicaid paid. See Goheagan v. Perkins, 197 So.3d 112 (Fla. 4th DCA 2016). The court also concluded that the lien could only be satisfied from that portion of the settlement attributable to past medical expenses. As to that issue, it reversed the ALJ and certified conflict with Giraldo v. Agency for Health Care Administration,208 So.3d 244 (Fla. 1st DCA 12-122016), in which the First DCA recently held that AHCA could satisfy its lien for medical payments already made not only from the portion of a settlement allocated for past medical expenses, but also from the portion intended as compensation for future medical expenses. The plaintiff did not waive its right to arbitrate pursuant to a contractual provision by bringing a separate action against the defendant where there was no significant relationship between the claims in the court action and the coverage of the arbitration clause in the contract. Timber Pines Plaza, LLC v. Zabrzyski, So.3d , 42 FLW D587 (Fla. 5th DCA 3-10-2017). The trial court properly found that a quarterly report known as a QUASR submitted by an insurer to the Florida Office of Insurance Regulation provided detailed data about its policies in a compilation that had independent value to others and thus met the definition of a trade secret exempt from public disclosure under Florida’s Public Records Law. Office of Insurance Regulation v. State Farm Fla. Ins. Co., So.3d , 42 FLW D655 (Fla. 1st DCA 3-20-2017). The QUASR includes county-level data about an insurer’s policies, including: total number of policies in force at the end of each month; total number of policies canceled and nonrenewed; number of policies canceled and nonrenewed due to hurricane risk; number of new policies written; total dollar value of structure exposure under policies that include wind coverage; and number of policies that exclude wind coverage. State Farm had been filing the reports on a diskette marked as confidential and trade secret and included a notice of trade secret as required by §624.4213(1), Fla. Stat. It apparently learned that OIR was planning to publicly release the data anyway and brought the instant declaratory judgment action. The court found that State Farm introduced competent substantial evidence supporting the trial court’s conclusion that the data has independent economic value, or potential value at least, and thus satisfied the statutory definition of a trade secret exempt from disclosure. In a suit challenging the constitutionality of the 2014 amendments to §400.023, Fla. Stat., alleging violation of separation of powers by the creation of new procedural rules singling out nursing home residents and denying access to courts, the trial court erred in allowing the suit to proceed against the governor. Scott v. Francati, So.3d , 42 FLW D656 (Fla. 1st DCA 3-20-2017). The court explained: “The determination of whether a state official is a proper defendant in a declaratory judgment action challenging the constitutionality of a statute is governed by three factors. The determination begins with ascertaining whether the named state official is charged with enforcing the statute. … If the named official is not the enforcing authority, then courts must consider two additional factors: (1) whether the action involves a broad constitutional duty of the state implicating specific responsibilities 20 | May/June 2017 | www.FloridaJusticeAssociation.org

of the state official; and (2) whether the state official has an actual, cognizable interest in the challenged action.” Applying these factors—and rejecting the plaintiff’s argument that because the statute in question is self-executing the governor is the proper defendant because of his general executive duty to execute and enforce the laws-the court found the governor was not a proper defendant. Specifically, it found that prohibition was warranted because the governor has no enforcement authority over the challenged statute and there was no relief the court could order the governor to provide that would remedy the alleged constitutional violation. The court did suggest that the plaintiff could test the constitutionality of the statute by bringing suit against a specific defendant who she alleges has acted negligently or violated residents’ rights, and, should that defendant then move to dismiss the suit by invoking the statute, the plaintiff could then argue the statute is unconstitutional as applied. In an action alleging negligence, mental and emotional child abuse, and negligent hiring, retention or supervision based on the alleged sexual abuse of a minor by a teacher at her private school, the trial court erred in granting a motion to dismiss with prejudice on statute of limitations grounds as it could not be determined from within the four corners of the complaint when the parents knew or should have known of the abuse or when the child reached age eighteen, the events that would trigger the running of the statute of limitations against the minor child. Jane Doe No. 3 v. Nur-Ul-Islam Academy, Inc., So.3d , 42 FLW D674 (Fla. 4th DCA 3-22-2017). “[T]he law is well-settled that the facts giving rise to the motion to dismiss must be found within the four corners of the complaint, and therefore, if there is additional information required to support a fatal defense, the recourse would be a motion for summary judgment or trial.” The court noted that, upon remand, the trial court may enter an order dismissing the complaint without prejudice. In an action based on a slip and fall on hydraulic oil that had leaked from elevator machinery into a condominium hallway and alleging negligence in the failure to properly maintain the elevator and surrounding area, the trial court erred by granting summary judgment for the condominium association defendant based on its conclusion that the association had no constructive notice of the oil leak, a conclusion it reached by discounting plaintiff’s expert’s affidavit after weighing the witness’ credibility and reliability and speculating on the plaintiff’s chance of success. McNabb v. Bay Village Condominium Assn. et al, So.3d , 42 FLW D719 (Fla. 2d DCA 3-292017). The court found that expert’s affidavit created a genuine issue of material fact that precluded summary judgment. The court also noted that the same judge had made essentially the same error in determining that a previous affidavit by the same expert and containing many of the same findings as the one in this case lacked credibility, that time resulting in reversal of summary judgment the trial court had granted in favor of the elevator company. McNabb v. Taylor Elevator Corp., 203 So.3d 184 (Fla. 2d DCA 2016). See 592 AFTL Jour. 16. A clause in a law firm’s retainer agreement that provided for a “success fee of a percentage to be agreed upon amongst the parties hereto” was unenforceable for failure to include essential terms. Piero Salussolia, P.A v. Nunnari, So.3d , 42 FLW D729 (Fla. 3d DCA 3-29-2017).


The trial court did not err in granting summary judgment for the defendant in a premises liability case where the plaintiff made repeated trips into and out of the store during which he clearly saw and avoided an empty shipping pallet on the floor before tripping over it on one of those passes. Brookie v. WinnDixie Stores, Inc., So.3d , 42 FLW D752 (Fla. 1st DCA 4-42017). On his first trip, the plaintiff made a purchase and took it to his car. He then made three more trips into the store to obtain empty boxes, each time taking them to his car. While this was going on, a distributor was delivering a shipment of beer. The beer was stacked five feet high on a pallet between the store’s entrance and exit doors, and an empty pallet was sitting on the pallet jack’s prongs to the right of the exit. The surveillance video showed that the plaintiff changed course to avoid the pallet on his first two passes. On the third pass, he admittedly saw the pallet and took four steps before tripping over it. On the fourth pass, he again changed course to avoid the pallet. Based on the clear facts presented, the court found this to be a pure question of law: “[Defendants] were under no duty to warn [plaintiff] of the open and obvious pallet, where [plaintiff’s] knowledge of the pallet was equal to or superior to [defendants’] knowledge. Furthermore, [defendants] did not fail to maintain the premises in a safe condition where [plaintiff] saw the pallet, which was not inherently dangerous, or if considered dangerous, was readily avoidable, had [plaintiff] engaged in the ‘ordinary use of his own senses.’ … The legal duty of premises owners owed to business invitees is based on logic, common sense, and human experience, and in this case the trial court correctly granted summary judgment, because [defendants] did not breach any duty owed to [plaintiff] as a matter of law.” Notably, the court also distinguished the pallet from a “foreign substance” on the floor, finding it a “legitimate aspect of a retail-business economy”: “[Defendants] complied with their duty to maintain the premises in a reasonably safe condition by exercising ordinary care in accepting delivery of an inventory shipment which, as the trial court pointed out, is an ordinary feature of everyday life. [Defendants] could not reasonably have anticipated that [plaintiff] would trip over the pallet he had previously observed and safely walked around twice before the accident.” In a tobacco liability case alleging fraudulent concealment and conspiracy, the core of the action is grounded in intentional

misconduct, thus the comparative negligence statute, §768.81, Fla. Stat., does not apply to require apportionment of an award of compensatory damages for the plaintiff’s comparative fault. Philip Morris USA, Inc. v. Boatright, So.3d , 42 FLW D845 (Fla. 2nd DCA 4-12-2017). The court certified conflict with three cases from the Fourth DCA holding that the core of these types of actions is grounded in negligence and that the comparative fault statute is thus applicable to reduce the smoker’s verdict: R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487 (Fla. 4th DCA 2015); R.J. Reynolds Tobacco Co. v. Grossman, 42 FLW D106 (Fla. 4th DCA 1-4-2017); and R.J. Reynolds Tobacco Co. v. Calloway, 201 So.3d 753 (Fla. 4th DCA 2016). Where on the initial juror questionnaire a potential juror denied having been a part of a lawsuit or having been involved in a criminal case, but post-trial investigation by the defendant revealed she had an extensive history of both civil and criminal matters, the trial court erred in denying the defendant’s motion to interview the juror. Westgate Place, LLC v. Parr, So.3d , 42 FLW D858 (Fla. 5th DCA 4-13-2017). The investigation revealed the juror’s litigation history included twenty felony and misdemeanor charges for various drug possession and theft offenses, a civil traffic infraction, a tax warrant, a bankruptcy and a divorce. The juror also allegedly misrepresented her dates of residence in the area. During questioning, she was not asked about involvement in prior lawsuits, but the court rejected the plaintiff’s argument that the defendant did not exercise due diligence during voir dire, finding that the juror’s questionnaire and responses during jury selection gave the defendant’s attorney no reason to delve further into her litigation or criminal history. In a construction defects case, where the complaint did not conclusively establish that the 10-year statute of repose had expired prior to the filing of the complaint, the trial court erred in dismissing the plaintiff’s complaint with prejudice. Busch v. Lennar Homes, LLC, So.3d , 42 FLW D863 (Fla. 5th DCA 4-13-2017). The court dismissed the complaint based upon the builder’s assertion that the parties’ contract was completed at closing, which occurred more than ten years prior to the filing of the complaint and thus ostensibly was barred by the statute of repose for construction defects, §95.11(3) (c), Fla. Stat. The Fifth DCA disagreed and reversed: “Because the contract expressly contemplated that closing could occur even if work required by the contract remained incomplete, and the complaint did

LEGISLATIVE NOTES It’s over!! The 2017 Regular Session ended almost on time on Monday, May 8, after requiring a three-day extension for them to finish the budget and a few other matters. Barring one or more possible Special Sessions to deal with the budget (depending on how much of it the governor vetoes), medical marijuana, and maybe other issues, the legislature will not be back in Tallahassee until interim committee meetings begin in late summer or early fall. As yet, no interim committee meeting schedule has been released.

year they passed a similar law convening the 2018 Regular Session on January 9, 2018. If it ends on time, sine die will be on March 9, 2018.

The 2018 Regular Session will be in the early time slot again. Art. III, Sec. 3(b), Fla. Const., requires the 60-day annual sessions in odd-numbered years to start in March, but it gives the legislature the discretion to specify a different starting date for even-numbered years. In 2014, they passed a law moving the start date of the 2016 Regular Session to January, and last

Calendar:

For a comprehensive post-Session wrap-up of the 2017 legislation that could impact your practice see the Special Focus section of this issue.

August 1, 2017

Senate deadline for filing 2018 claim bills

January 9-March 9

2018 Regular Legislative Session

www.FloridaJusticeAssociation.org | May/June 2017 | 21


CASES&COMMENTARIES not allege that no work was completed after closing, the allegations of the complaint do not conclusively establish that the contract was completed upon closing.”

and no further review is permitted unless a constitutional issue is raised. Kaplan v. Epstein, So.3d , 42 FLW D1006 (Fla. 4th DCA 5-3-2017).

In an action based on a trip and fall over a protruding water valve located on a county road, the trial court erred in granting summary judgment for the defendant water company based upon a determination that as a matter of law it had no legal duty to repair the county road around its water value or warn the public of the tripping hazard. Lee County Dept. of Transportation v. The Island Water Association, Inc., So.3d , 42 FLW D884 (Fla. 2d DCA 4-19-2017). The trial court relied on an agreement between the water company and the county to determine that the water company’s only duty to the public was as to its equipment and that the water company had no duty in this circumstance where there was a depression in the asphalt around the valve and the water company did not install the asphalt or damage it. In reversing, the Second DCA noted that “despite a contract, a party who exercises control over property may have a duty to maintain a premises in a reasonably safe condition.” The court also reversed a trial court order on a motion in limine excluding evidence of the water company’s subsequent remedial measures (three months after the incident it had the sunken asphalt repaired), finding that this would be admissible as evidence of control.

Where a Florida resident while vacationing in South Carolina lent his Florida-registered and insured car to his brother-in-law, a Pennsylvania resident, who then proceeded to rear-end another Florida resident at a South Carolina intersection, the court concluded that Florida’s dangerous instrumentality law should be applied as, under the facts of the case, “Florida has the most significant relationship to the occurrence and the parties on the issue of vicarious liability.” Ward v. Morlock, So.3d , 42 FLW D1038 (Fla. 5th DCA 5-5-2017). What a great Bar exam question these facts would make!

Where the plaintiff was injured in fall when she stepped on a cracked paver stone while taking a late-night shortcut across a utility easement on the defendant’s property, she was at best an uninvited licensee with respect to whom the defendant did not breach any duty it may have owed her. Arp v. Waterway East Association, Inc., So.3d , 42 FLW D938 (Fla. 4th DCA 4-26-2017). The plaintiff and a companion were walking home around 11:00 pm and decided to take a shortcut, which required them to go through a shopping center parking lot, step over a raised curb at the end of the lot, and then walk through a grassy area, over a short path of paver stones located next to a storm pump station, through more grass, and around a guardrail. The injury occurred when she stepped on a cracked and loose paver stone by the pumping station, which caused her to roll her ankle and fall. The plaintiff testified that she did not visit any of the businesses in the shopping center, she had regularly seen others using this cut through, and there was no “No Trespassing” sign at the site. The Fourth DCA affirmed summary judgment for the defendant, finding that the plaintiff was on the property for her own convenience and without expressed or reasonably implied invitation. It noted that the absence of a “No Trespassing” sign does not constitute an implied invitation, nor can an implied invitation be inferred from the fact that others may have trespassed on the property. Finally, the court found that the defendant did not breach any duty it might have to an uninvited licensee or trespasser because it did not willfully or wantonly harm the plaintiff, nor did the property contain any known dangers that were not open to ordinary observation. And, even if there were concealed hazards, the duty to warn an uninvited licensee or trespasser only attaches when the owner discovers the person’s presence on the property, which was not the case here. Under the plain text of §44.104, Fla. Stat., when parties agree to voluntary binding arbitration, their appeal is to the circuit court,

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A challenge to the recent increase in worker’s compensation insurance rates based on allegations of Sunshine Law violations, illegal denial of access to records and Public Records Act violations was rejected by the First DCA. National Council on Compensation Ins. v. Fee, So.3d , 42 FLW D1048 (Fla. 1st DCA 5-9-2017). NCCI is a nationwide licensed rating organization that files consolidated rate requests with the Office of Insurance Regulation for most of the workers’ compensation insurers in Florida. In 2016 it filed for a 17.1 percent overall increase in rates, which it attributed to the Supreme Court’s decision in Castellanos v. Next Door Co., 192 So.3d 431 (Fla. 2016), declaring unconstitutional the statutory cap on claimants’ attorney’s fees. It later amended that request, upping it to a proposed 19.6 percent increase, after the Supreme Court decided Westphal v. City of St. Petersburg, 194 So.3d 311 (Fla. 2016), holding the 104-week statutory limit on temporary total disability benefits unconstitutional and reinstating the previous statute’s 206-week limitation on these benefits. The proposed increase was challenged in circuit court by an attorney who is the sole owner of a small law firm and purchases workers’ compensation insurance, but the OIR proceeded on with the review process and eventually approved an overall rate increase of 14.5 percent. However, before the approved increase could go into effect, the trial court held an evidentiary hearing and subsequently determined that the order approving the rate increase was void because NCCI and OIR violated the Sunshine Law under three separate statutory provisions – §§627.091(6), 286.011 and 627.093, Fla. Stat. – and that NCCI violated §§627.291(1) and 119.07, Fla. Stat., by denying the plaintiff access to its records. On appeal, the First DCA reversed, concluding that none of these statutory provisions apply to NCCI and the process by which it determines a rate that it files for approval by the OIR.

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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SUPREME COURT CURBS DISCOVERY CONCERNING TREATING PHYSICIANS, YOUR CLIENTS, AND YOU by Dale Swope and Brent Steinberg

T

he Supreme Court accepted jurisdiction in a case certified by the Fifth DCA to have created a conflict on a fairly narrow issue. The Second DCA decided 25 years ago that the attorneyclient privilege protected a plaintiff from disclosing whether their lawyer referred them to their doctor. The Fifth DCA held that such a communication was not in furtherance of delivering legal services but was instead in furtherance of obtaining medical treatment, and was therefore not attorney-client privileged. The Supreme Court, in Worley v. Cent. Florida Young Men’s Christian Ass’n, Inc., SC15-1086, 2017 WL 1366126 (Fla. Apr. 13, 2017), sided with the Second, without really saying why a referral to a doctor was in furtherance of legal representation rather than for the purpose of obtaining medical treatment. Perhaps this implicitly acknowledges that in this day and age, suggesting appropriate medical providers has become part of a lawyer’s job. Standing alone, that ruling was a minor victory. After all, the question of who referred a patient to a doctor is rarely a mystery, and the open secret can often be confirmed in a myriad of ways other than by a direct question to the plaintiff. The doctor’s intake forms frequently have a field to be completed for that information, so her billing staff can know who to nag about payment. The doctor can be asked the question under oath in their deposition, assuming they haven’t already dictated it into their H&P, or sent a thank you note to the law firm as a courtesy. Worst case, any defense lawyer worth their silk socks knows how to crack the code with two questions:

Q: Were you referred to this doctor by someone? Attorney: Careful, Ms. Jones – that is a yes or no question. A: Yes. Q: Were you referred to this doctor by anyone OTHER

24 | May/June 2017 | www.FloridaJusticeAssociation.org

than your law firm? A: No. Q: (Drops the mic). There is, however, a much larger and more complex question that underlies the narrow issue that was certified, and the Court courageously accepted the challenge to address it. What the defense industry has been busting a gut to prove, for years, is what they perceive to be a creeping symbiosis between plaintiff law firms and “player” medical clinics. They suspect that secret or perhaps implicit arrangements have been made that involve large advertising law firms referring monstrously large volumes of patients to medical providers. In exchange, the providers provide massive amounts of unnecessary treatment, at grotesquely inflated prices, give out opinions and surgical recommendations like gumdrops, and practice up their presentation skills so they can be charming and persuasive in court. The adjusters are then confronted with medical bills that themselves overwhelm the 10, 25, or 100 thousand dollar policy limits most cases involve, and so the machine just harvests policy limits like a street sweeper picks up plastic beads the morning after the knight parade. At least that’s how the insurance companies imagine it happens. And in their minds, the only way to really stop this is the way frauds have always been stopped – by exposing the truth to the jury! Pause for a minute to savor the ridiculous irony of a liability insurance company trying to act self-righteous about telling the ‘truth’ to a jury. These are the companies who consistently tell the biggest lie in the courtroom, every single time they send an insured in to sit at the table intimidated and trusting, while the true party in interest slinks into the back corner. Do they really think they fool anybody, as the only


“observer” in the courtroom, taking notes in their short sleeve shirts with clip-on ties and pocket protectors?

Morgan, Colling & Gilbert, P.A. v. Pope, 798 So.2d 1 (Fla. 2d DCA 2001)

Unpause.

Brown v. Mittelman, 152 So.3d 602 (Fla. 4th DCA 2014)

Over several years, the DCAs have been gnawing at the edges, deciding that more and more “impeachment” material about the legal/medical relationship is discoverable and admissible. A big jump happened with Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060 (Fla. 4th DCA 2011).

Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So.3d 200 (Fla. 4th DCA 2012)

Lytal, Reiter vs. Malay, 133 So.3d 1178 (Fla. 4th DCA 2014)

And, of course, Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 163 So.3d 1240 (Fla. 5th DCA 2015), the Fifth DCA decision itself.

The case was a confusing conceptual meander, but its holding seemed to be that if a patient was referred to a doctor, who was then expected to give opinions on permanency, futures, and the like, then the Elkins discovery rules applied. Moreover, since a hybrid treater was potentially subject to bias because of not only payments for testimony, but also for treatment fees, the “unusual and compelling circumstance” standard of Elkins was met, justifying questions about referrals from the lawyers, and payment rates for from insurers vs. LOPs for Dr. Katzman’s controversial percutaneous discectomy procedure. This arguably created conflict with Clair v. Perry, 66 So.3d 1078 (Fla. 4th DCA 2011), that held Boecher discovery was not available for treating physicians who planned to testify about permanency, but arguably did not, since Katzman added the new features of referral by attorney and a novel medical treatment, that arguably shifted the scales. However, that same court soon held that the referral of the plaintiff was not really that important, and generally permitted discovery about the possibility of referrals, say, in other cases. Brown v. Mittelman, 152 So.3d 602 (Fla. 4th DCA 2014). In doing so, it slid further down the slope by abandoning the idea that the facts triggered the “unusual and compelling circumstances” exception of Elkins, and instead held that the limitations of Elkins, and the rule it spawned, simply did not apply to limiting discovery from experts other than those specially retained for litigation. And while this systematic assault on physicians who treat injured people was occurring, the DCAs were building protective walls to prevent intrusion into the relationships with CME doctors. Even where the plaintiff established that an expert testified 99% of the time for the defense, and did so in dozens of cases, the defendant was not required to disclose the amount it had paid him over that time. Grabel v. Sterrett, 163 So.3d 704 (Fla. 4th DCA 2015). Now, against that background, the importance of the Supreme Court’s Worley case comes into focus because the opinion went far beyond resolving the dispute over whether the defense could compel the plaintiff to disclose whether the lawyer referred her to her doctor. It held that before it could really answer the certified question, it needed to address whether the financial relationship between the plaintiff’s law firm and the plaintiff’s treating physician is discoverable, at all. And it decided that it was not. That decision overturned, at least implicitly, ALL those DCA cases to the contrary, including

Even in those cases where the bills appear to be inflated for the purpose of litigation and even where there is an LOP or other evidence of a “cozy relationship” between the doctor and the plaintiff’s lawyer, it found the chilling effect of such discovery to outweigh the importance of those facts in the proof of the case. It also refused to separate what is a “fact” from a “communication” in the referral, and gave an important reminder that no matter how great the need for discovery might be, that need never ever overcomes the absolute privilege afforded to attorney-client communications. The question that now remains, that was not addressed by the court, is the one of admissibility. For over a decade, defense firms have been riding on these errant DCA Court opinions in obtaining evidence about these relationships between the large firms and the medical providers to whom they refer their clients. No doubt, this information will continue to be proffered at trial through testimony that is either not privileged, or that was given after privilege was waived. For now, the vigilant assertion of privilege is essential, and probably some adjustment to office policies about referrals might be in order. Don’t Let Medicaid Take a Bigger Piece of the Pie Than Federal Law Allows One time or another, most of us have had the pleasure of trying to negotiate down a Medicaid lien with the fine folks at Conduent (formerly known as Xerox and ACS Recovery Services before that). It generally goes something like this: Your client suffered approximately $500K in damages as a result of a crash, but you end up settling for $100K because of serious liability issues. Medicaid has a lien for $50K and demands $37,500 as reimbursement, under its statutory default formula in §409.910(11)(f ). Seeing as your client only recovered approximately onefifth of his total damages, it only seems fair that Medicaid recover one-fifth of its lien ($10K). But Conduent keeps sending you the same form letter demanding payment of $37,500, and when you finally get a hold of a “recovery specialist” on the phone, they tell you their hands are tied and cannot accept a penny less.

www.FloridaJusticeAssociation.org | May/June 2017 | 25


TIPSFORAUTOPRACTITIONERS So what’s the next step? Ever since 2013, practitioners who wish to contest the amount payable to Medicaid have been required to follow the procedure set forth in §409.910(17). But two recent cases have called the entire statutory scheme into question, suggesting that Medicaid’s reimbursement rights may be far more limited than the Agency of Health Care Administration (“AHCA”) would lead you to believe. First, a quick primer on Medicaid’s reimbursement rights under Federal and Florida law: Federal law requires states to seek reimbursement from third parties that have legal liability for the Medicaid payments. 42 U.S.C. §1396a(a) (25)(H). However, states cannot take for Medicaid reimbursement any portion of a settlement not “designated as payments for medical care.” Arkansas Dept. of Health and Human Services v. Ahlborn, 547 U.S. 268, 284 (2006); see also 42 U.S.C. §1396p(a)(1). The U.S. Supreme Court has also prohibited states from establishing “irrebuttable, one-size-fits-all statutory presumptions” for the amount owed as a recovery of a “medical expense” because that would allow it to recover more than “payments for medical care” paid by Medicaid. Wos v. E.M.A. ex rel. Johnson, 133 S. Ct. 1391, 1398-99 (2013). Florida’s Medicaid Third-Party Liability Act provides a default statutory formula for calculating the amount owed to Medicaid in Fla. Stat. §409.910(11)(f ): 1) Reduce the gross settlement by 25% to account for attorney’s fees (no matter what your contract provides) 2) Deduct taxable costs incurred 3) Divide that number by two 4) Medicaid recovers the lesser of the amount of benefits paid or the resulting number. Quite often, the (11)(f ) formula will give Medicaid more than what federal law allows, and result in your client’s net recovery being much lower than seems fair. In response to the Wos court’s prohibition of “irrebuttable, one-sizefits-all” formulas, the legislature enacted §409.910(17)(a)-(b). That statute gives Medicaid recipients the right to contest the amount payable under the (11)(f ) formula by filing a petition with the Division of Administrative Hearings (DOAH). But, to prevail, the recipient must prove by clear and convincing evidence that less than the formula amount should be allocated for medical expenses, or that Medicaid paid out less than what it claims. The entire DOAH process is fairly easy to navigate, but beware of the deadlines in §409.910(17) and be sure to follow the procedures in Chapter 120. The First DCA held that Medicaid’s lien extends to a recovery of past and future medical expenses. One would think that Medicaid’s right of reimbursement should be limited to the portion of a settlement allocated for past medical 26 | May/June 2017 | www.FloridaJusticeAssociation.org

expenses (i.e., the amount actually paid by Medicaid), particularly if that settlement makes the client ineligible for future Medicaid benefits. But the First DCA recently held that AHCA is entitled to reimbursement for medical costs already paid from the portion of the settlement allocated for past medical expense and future medical expenses. Giraldo v. AHCA, 208 So.3d 244 (1st DCA 2016). But then the Second DCA held that Medicaid’s lien is limited to only a recovery of past medical expenses. Thankfully, three months after Giraldo, the Second DCA certified conflict with the First DCA’s decision. In Willoughby v. AHCA, 212 So.3d 516 (Fla. 2nd DCA 2017), the Medicaid recipient reached settlements totaling $4.02 million. But $3.99 million of that settlement was “bad faith damages” paid by a UM insurer who, it was alleged, wrongfully denied coverage and acted in bad faith by failing to tender the $10,000 of UM benefits to the catastrophically injured son of its customers. The court held that Medicaid’s lien extended to the entire recovery, including a recovery of extra-contractual payments. However, the court went on to hold that AHCA could only recover from that portion of the settlement allocable to past medical expenses. It also gave lukewarm approval to a pro rata method of calculating the amount of the settlement allocable to past medical expenses by saying “we do not condemn this approach.” At the time of writing, Giraldo is pending before the Florida Supreme Court, and Willoughby is in line behind it. Meanwhile, the Northern District of Florida held that §409.910(17) (b) is preempted by federal law. A month after Willoughby, a U.S. District Judge from the Northern District of Florida took that decision one step further in Gallardo v. Dudek, 4:16CV116-MW/CAS, 2017 WL 1405166 (N.D. Fla. 4-182017). Like Willoughby, the Gallardo court concluded that “federal law prohibits state agencies from seeking reimbursement of past Medicaid payments from portions of a recipient’s recovery that represents future medical expenses.” But Gallardo also held that to the extent Medicaid recipients must affirmatively disprove the arbitrarily formula-based allocation with clear and convincing evidence, it conflicts with and is preempted by federal law. On that basis, the court enjoined AHCA from enforcing 409.910(17)(b) at all! What’s next? AHCA has retained the services of several appellate lawyers, including from the Office of the Attorney General, as if to indicate the fights in Giraldo, Willoughby and Gallardo are far from over. But even if the Willoughby and Gallardo decisions are affirmed once the appellate process runs its course, it is uncertain how long these victories will last.


A 2013 amendment to 42 U.S.C. §1396a(a)(25)(H) substantially broadened the state’s rights to reimbursement by permitting states to recover from “any payment from a third party that has a legal liability to pay for care and services available under the [Medicaid] plan.” The effective date has been extended multiple times, but barring further extensions, that amendment will go into effect on October 1, 2017. PFS (Paradoxically Fickle Statements) Although the Supreme Court recently discouraged courts from “nitpicking” over proposals for settlement (Anderson v. Hilton Hotels Corp., 202 So.3d 846, 858 (Fla. 2016)), that mandate has not resolved the lower courts’ confusion over what invalidates an offer. Take for example, Wheaton v. Wheaton, So.3d , 42 FLW D411 (Fla. 3d DCA 2-15-2017), reh’g denied (3-20-2017) where the trial court and the Third DCA invalidated a PFS because the format of the service e-mail did not strictly comply with Fla. R. Jud. Admin. 2.516(b)(1)(E). Before the ink on Wheaton was dry, the Second DCA certified conflict in Boatright v. Philip Morris USA Inc., 2017 WL 1363915 (Fla. 2d DCA 4-122017), holding that a PFS need not comply with Rule 2.516(b)(1)’s service requirements at all. It appears as if the Florida Supreme Court will have to intervene once again, to resolve an ambiguity created by an imperfectly drafted rule. Evidence Needed to Prohibit Deposition of Minor Trial judges are generally granted broad discretion to take whatever measures they deem necessary to protect a minor from a deposition. However, to establish “good cause” for prohibiting the deposition altogether of an 11-year-old who is alleged to be a material witness, the trial court was required to receive evidence regarding the child’s lack of maturity and experience, and/or evidence of how the deposition may be detrimental to the child. Akhnoukh v. Benvenuto, So.3d , 42 FLW D882a (Fla. 2d DCA 4-19-2017). Mistakes, Misunderstandings and Misremembered Facts Does Not A Fraud Make There certainly have been a lot of recent cases addressing motions to dismiss for fraud on the court. Perhaps there was a recent DRI seminar encouraging the defense bar to file motions to dismiss for fraud on the court whenever there is any factual inconsistency in the plaintiff’s story, no matter how innocent. But, as a recent Second DCA case reminds us, the burden to prove that a plaintiff’s claim should be dismissed for fraud on the court is pretty darn high – as well it should be. In Duarte v. Snap-on Inc., So.3d , 42 FLW D1023a (Fla. 2d DCA 5-3-2017), the Second DCA reversed a trial court order dismissing the plaintiff’s case for fraud for lack of sufficient evidence to sustain that finding. The basis for the defense’s motion, filed on the eve of trial, was that the plaintiff’s alleged lack of “candor and completeness” during written and deposition discovery regarding a subsequent auto accident, and his injuries arising therefrom. To rebut those charges, the plaintiff proffered, among other things, that (1) he did not intend to mislead anyone, (2) that he neither reads nor speaks English, and (3) that he suffers memory deficiencies due to age and medications. Without conducting an evidentiary hearing, the trial court granted the defense’s motion, concluding the plaintiff told “repeated untruths” about the subsequent

TAKING A BREAK OF SORTS by Dale Swope By the time this gets into your hands, I will have accepted the honor of becoming the president of the FJA. I don’t think I can fairly say this has snuck on me, exactly, but the fact remains that this enormous privilege brings with it an exceptional amount of work. I have been scrambling to find places to harvest the time this new job will demand. I am saddened to say that one thing I will have to be giving up is the time spent on this article. I have been fretting over these words now for way more than a decade. Of course I have always griped about how hard it is, but the truth is I’ve been fueled by your comments and thanks, public and private, and those rare moments when it looked like the ink I put on a page might actually have changed an outcome for a few of your clients. After all that griping, now that it’s slipping away I know I’m gonna straight up miss doing this. Bigly. I have always been helped, mightily, by other members of my firm, and, more than anyone else by Brent Steinberg, who will be taking over the work at least for now. I am positive that Brent is smarter than me, writes more eloquently, and shares the same passion for service. I predict you will find his work to be, in all fairness, an upgrade. And he will still be supported, as I have been by our young star, Kristen Collins. I do have to take time to thank Ken Kranz for continuously resisting the temptation to tone down my many rants, and for allowing me to indulge in the unorthodox grammar and diction that crutch up unsophisticated writers who are incapable of fully communicating their thoughts using the Queen’s English. I know his law review sensibilities were challenged in letting me slide. Jan Brown, also, should be acknowledged for having faithfully sent me all those upcoming deadline reminders, and notices of deadlines passed, and threats to go to print without me, that helped motivate me to finish my work on time. Or at least before the extended deadline. Pretty much. And most of all, thanks to all of you who still read the old school hard copy version that ends on your desk each quarter. For all that perfectly good time you wasted away with me while sipping coffee or maybe whiskey, shoes off and feet up after everyone else has left the office, thanks. I’m hoping that sometimes it made you smile, or maybe sometimes it pissed you off enough to take action, but most of all that it helped you do good. It’s been real. www.FloridaJusticeAssociation.org | May/June 2017 | 27


TIPSFORAUTOPRACTITIONERS accident and “that his credibility was so damaged that his testimony could not be presented to a jury.” The Second DCA reversed because “the limited documentary record before the trial court was not sufficient to justify a decision that dismissal, rather than impeachment at trial or a traditional discovery sanction,” was the appropriate remedy. It reiterated that the defense must prove, by clear and convincing evidence, that the plaintiff “sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Amount in Controversy in UM Claims In Civil Procedure 101, we were all taught that a diversity case can only be removed to federal court if the amount in controversy exceeds $75,000, exclusive of interest and costs. 28 U.S.C. §1332. That seemingly simple proposition can get a little more complicated in practice.

the amount of fees incurred by the plaintiff at the time of removal. The future bad faith claim and future fees had no bearing on the amount in controversy. Compare Becker v. Progressive American Insurance Company, 2017 WL 735404 (M.D. Fla. 2-24-2017), where the UM limit was $100,000. The plaintiff moved to remand even though he had previously demanded the policy limits and filed a Civil Remedy Notice alleging that plaintiff’s damages are “far in excess of the minimal $100,000 policy limits.” In denying the motion for remand, the court commented that “this has become an all too familiar story: a case worth in excess of $100,000 when filed in state court becomes a case worth less than $75,000 when removed to federal court.” 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.

But in UM cases, the amount of the policy limits will usually dictate whether the amount in controversy requirement is met. For example, in Bender v. GEICO, 2017 WL 1372166 (M.D. Fla. 4-17-2017), GEICO removed a suit for UM benefits on a $20,000 UM policy. GEICO argued that the amount in controversy exceeded $75,000 because the plaintiff intended to bring a bad faith claim and may recover fees under §627.428. The court entered the remand order sua sponte, because GEICO did not submit evidence regarding

BRENT STEINBERG

Mr. Steinberg is an attorney at Swope, Rodante P.A. in Tampa. He is a proud graduate of the University of Florida and UF College of Law, where he was a member of the Florida Law Review. Mr. Steinberg is an EAGLE member of the FJA and served as the Chair of the FJA Auto Insurance Committee for 2016-17. He represents victims of catastrophic personal injury, wrongful death, insurance bad faith, legal malpractice and wrongful coverage denials, handling cases throughout Florida and Georgia at both the trial and appellate levels.

• 100% Admissibility Record • Award Winning Team of Former Journalists • We Produce Results Let us tell your client’s story in a clear, compelling manner. Producing Results since 1985

800-526-5643 or 904-399-8825 www.videolawservices.com 28 | May/June 2017 | www.FloridaJusticeAssociation.org

• Settlement Documentaries Day in the Life Documentaries

Michaela Miller President/CEO


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Ted Leopold | Leslie Kroeger 877.515.7955 | cohenmilstein.com Palm Beach Gardens, FL | Washington, DC | New York, NY | Philadelphia, PA | Chicago, IL | Raleigh, NC Antitrust | Catastrophic Injury & Wrongful Death | Civil Rights & Employment | Consumer Protection | Employee Benefits / ERISA Ethics & Fiduciary Counseling | Human Rights | Managed Care Abuse | Medical Malpractice | Public Client | Securities Litigation & Investor Protection | Unsafe & Defective Products | Veterans Rights & Benefits | Whistleblower / False Claims Act

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MASSTORTS

COMPOSITE COATED HERNIA MESH: Dangerous Devices and Disastrous Results by Robert E. Price

H

ernia mesh devices have been on the market for decades. For several medical device manufacturers, the hernia repair market makes up a substantial portion of their profit margins. With the relaxed medical device clearance standards set forth by the FDA, hernia mesh manufacturers have been allowed to clear to market mesh designs that are often untested and unproven to be safe and effective in a clinical setting. In an aggressive and competitive market, hernia mesh manufactures have invented several different iterations of mesh products that implement creative design strategies that are able to be easily marketed to unsuspecting physicians and patients. One dangerous design in particular – the composite coated mesh patch – is garnering the attention of physicians and medical device attorneys as it paves a path of destruction in patents that have received this device and suffered debilitating complications. An Overview of Hernia Repair An abdominal hernia is one of the most common medical occurrences people experience. A hernia is defined as an abdominal wall protrusion. The protrusion presents when the peritoneal-lined sac (the membrane that covers an organ) comes through a tear, weakening, or opening in the abdominal wall muscles. Per year, approximately 700,000 hernia repairs are performed in the United States.1 An abdominal wall hernia is referred to generally as a “ventral hernia.” Within the umbrella of the term “ventral hernia” comes several sub-types of hernias. For example, an umbilical hernia presents at the site of the naval; an epigastric hernia presents superior to (above) the naval; and an incisional hernia appears at the site of a previous surgical incision.2 Patents diagnosed with ventral hernias, especially hernias that are recurrent or severe, must often face surgical intervention as the only hope for a meaningful corrective repair. Very often, a hernia surgery consult involves the surgeon informing the patient that he or she recommends the use of some type of mesh device during the surgery. Without the use of some type of reinforcement mechanism, a surgeon faces a statistical probability that a hernia will re-occur and the patient will be faced with another surgery to repair the hernia yet again.3 The surgeon may use creative lay descriptors to describe the importance of the use of a mesh device – perhaps such descriptive concepts such as describing mesh as a “bridge” or “reinforcement patch.” Most patients simply do not have the ability to review, analyze, and conduct research on the dozens of different types of meshes and patches on the market today. Even those patients with high levels of education 30 | May/June 2017 | www.FloridaJusticeAssociation.org

and/or sophistication simply do not have the knowledge base, skill, or ability to come to an independent analytical evaluation as to whether or not the mesh device proposed to be implanted in them is a “good mesh” or an ideal mesh for their situation. Therefore, patients tend to place a high degree of trust in their physicians throughout this process. The typical physician, in turn, wants to use a medical device that poses a low risk of adverse events and presents the best likelihood of a successful outcome. But what happens when a physician’s quest for the best outcome for their patient collides with the pharmaceutical industry’s quest for low cost margins and large profits? The Opportunity for the Mesh Industry to Capitalize on the Quest for the “Ideal Mesh” In 1951 a man named Benjamin Pease filed a patent titled “Nonmetallic Mesh Surgical Insert for Hernia Repair.”4 The patent was granted in 1954 and launched the use of “plastic” meshes for reinforcement in hernia repair surgery.5 Now, more than 60 years later, hernia meshes come in dozens of different sizes, shapes, tensile strengths, compositions, and “generational” iterations.6 It is frequently observed by the medical community that there currently exists no such thing as the “ideal mesh.” As observed by surgeons Mirmehdi and Ramshaw, “clinical studies have not yet found a single hernia mesh that has ideal tensile strength which also behaves as the most biocompatible in all patients with all types of hernias all the time.”7 Furthermore it is a very unfortunate fact that traditional clinical research tools, such as prospective randomized controlled trials, are currently inadequate insofar as aiding surgeons in identifying what types of meshes work best for certain hernia types and certain clinical populations.8 When considering the 60+ year history of hernia mesh combined with the widespread and frequent use of the device, it is surprising that there is still much to learn about these devices and so little known about what makes up the “ideal mesh.” One may wonder: after all this time on the market and all the different patient populations that could potentially be studied, why are clinical research tools inadequate? Much of the reasoning lies in the way the Food and Drug Administration (“FDA”) allows these devices to come onto the market. Most hernia mesh devices are “class II medical devices” that have entered the market through the FDA’s 510(k) application and clearance process. Under the 510(k) process, no clinical study or premarket approval process is required.9 In other words, the manufacturer need not independently prove the safety and/or efficacy of a given mesh device before it is brought onto the market. The 510(k) clearance process looks only at whether or not an appropriate “predicate device” is identified. Generally speaking, if the device proposed to be placed onto the market is “substantially similar” to a device currently on the market, then the manufacturer’s burden is met and may begin marketing the device. Under this process, a phenomenon called “piggybacking” can occur, wherein a device cleared via the 510(k) process is predicated on another device cleared via the 510(k) process, and so on and so forth.10 Using “piggybacking,” medical device manufactures can invent and clear dozens of iterations of meshes without actually clinically proving safety and efficacy of any of them. In the story of the hernia mesh device litigation, the “piggybacking” phenomenon has produced dangerous devices and disastrous results. Because there are ample predicate devices in which manufacturers can pick and choose, the result is a fertile field for hernia mesh


manufacturers to employ and unleash onto the market what can be best described as “experimental” designs of hernia meshes. Composite Coated Meshes – Defective Design Leads to Disastrous Results A particularly dangerous, inadequately tested, and unproven design that has become the recent subject of medical device litigation is the composite coated hernia mesh patch. To the layperson, a hernia mesh sheet looks something like a window screen. Imagine this screen then being covered in a coating of “goo” on both sides and then implanted in the human body. That is essentially the story of composite coated hernia mesh. The Atrium C-QUR™ product, first cleared to market in 2006, is the subject of state and federal court civil court lawsuit consolidation and is the first of what many lawyers are predicting will be multiple lawsuits against several manufacturers for damages caused by composite coated meshes. The C-QUR™ mesh, as claimed by the company, employs an “all natural Omega 3 gel coating” that is “derived from highly purified pharmaceutical grade fish oil.”11 The” jury is out” with regard to why an Omega 3 gel coating is an appropriate coating for a hernia mesh. Neither the product brochure12 nor the instructions for use13 explain exactly why this type of coating is a good design either. The Omega 3 gel coating design was not independently evaluated for safety and/or efficacy in humans before being placed onto the market. Given the parameters and limitations of the FDA’s clearance process combined with the lack of studies surrounding this type of coating, it is quite possible that someone from the company simply speculated that since Omega 3 fatty acids have anti-inflammatory benefits, perhaps the same substance would be good on a mesh device too. Results from rat studies on the C-QUR™ mesh showed troubling results. One rat that received a C-QUR™ mesh died on day 13 from an intestinal obstruction due to severe adherence of the bowel to the infected mesh.14 In the same study, it was found that “the infection rate among C-QUR™ meshes was high (15 of 16 rats) compared with all other meshes.”15 Furthermore, the same study showed that C-QUR showed no or very little incorporation into the abdominal wall (which is necessary for the mesh to do its job), and researchers found that, when attempting to determine rates of shrinkage, that the shrinkage rate of the mesh could not be determined “owing to the formation of large fibrotic pseudotumors in all but one of the meshes.”16 The C-QUR™ mesh has produced similar disastrous results in human patients, as over 100 lawsuits have been filed claiming, among other things, infections, intestinal obstructions, removal surgeries, and permanent scarring. Atrium Medical Corporation also has a checkered history with the FDA with regard to its medical devices. In 2015, a federal judge approved a permanent injunction against the company related to major violations of the Quality System regulation, the Medical Device Reporting regulation, and Correction and Removal regulation.17 The company still continues to sell the C-QUR™ line of devices despite the questionable integrity of the product and the lawsuits alleging debilitating injuries arising from patients who have been implanted with the product. Ethicon, a subsidiary of Johnson & Johnson, produced a similar composite coated mesh called Physiomesh™ that also employs a similar

design. The Physiomesh™ is a polypropylene mesh that is coated with a plastic polymer.18 The design, much like the C-QUR™ mesh, involves a fully-coated polypropylene mesh that allegedly aids in tissue ingrowth and prevention of adhesions. In May of 2016, the company issued an “urgent field safety notice” alerting surgeons that it was initiating a voluntary product recall.19 According to the company, the recall was oriented around findings stemming from unpublished data from two large independent hernia registries that recurrence/reoperation rated after laparoscopic ventral hernia repair were higher than the average rates of comparator meshes. The company went no further in explaining any other findings or adverse events, and presented no other rationale. The company advised physicians to immediately discontinue use of the product. One of the main design problems underlying composite coated meshes is that the coating inhibits proper tissue ingrowth. It is generally understood that some tissue ingrowth is necessary for proper incorporation of the mesh in the body; while over-incorporation can cause adverse events such as excessive scarification and adhesions in the body.20 The composite coated mesh is designed (at least in theory) to reduce harsh ramifications of too much tissue ingrowth and reduce negative outcomes such as excess scarring and bridging and adhesions. Theoretically, the composite coating serves as a protective barrier to prevent adhesions and excessive ingrowth. There is only one issue with this “theory” and it’s a huge issue. Composite coated meshes were not adequately studied in a clinical setting before thousands of them were cleared onto the market and implanted in patients. The problem with composite coatings, in addition to being generally unproven to be safe and effective, is that the coating on the mesh essentially halts proper tissue ingrowth with the mesh during the time in which the body is supposed to be incorporating the mesh. As stated in a colloquial manner, hernia mesh manufacturers swung the pendulum in the entirely opposite direction. By allegedly solving the problem of over-incorporation the manufacturers produced a mesh that did not properly incorporate whatsoever. Additionally, results of studies show that these coated meshes still posed problems with increased chronic inflammation and adhesions in addition to increased risk of recurrence.21 Damages Caused by Defective Mesh and Tips for Handling Cases The results of this design are disastrous. When the body encounters the composite coating of the mesh and experiences problems with incorporation of the mesh, several adverse consequences can happen. Common adverse events seen by patients and alleged in lawsuits are that: • Infections at the site of the mesh coating can occur; • A fluid buildup (or multiple pockets of buildup) called a “seroma” at the site of the mesh occurs; • The lack of the body’s incorporation causes the mesh to migrate, shift, and/or move; • The mesh, due to lack of incorporation, can fail and cause the hernia to re-occur (in which the mesh may or may not need to be removed during re-repair of the hernia); • The mesh, if placed next to the bowel, incorporates into the bowel instead of the abdominal wall, thereby causing sepsis, bowel obstruction, and even death. www.FloridaJusticeAssociation.org | May/June 2017 | 31


MASSTORTS It is very common to encounter operative reports that are downright gruesome. Some of the worst cases involve incorporation of the mesh into nearby organs, usually the small bowel, where the patient has to undergo one or more surgeries to remove the mesh and resect the bowel. Many patients undergo permanent pain, scarring, and even death. Since hernia mesh use is so widespread and there are many different types of hernia meshes on the market, the practitioner must obtain applicable operative reports and implant identification pages for all hernia operations. When ascertaining the identity of the product in question, it is important to try and secure the implant log or “sticker” page to ensure that the product in question is the one being sought, as one cannot solely rely on the surgeon to use the appropriate naming of the device during dictation of the operation. In the event that the client encounters a revision surgery, it is also important for the attorney to inform the pathology department at the hospital or surgical facility to hold and not destroy all pathological materials, and if feasible, transport them to a third party specimen storage facility. This ensures the materials are available for expert analytics. These issues must be thoroughly considered and explored when assessing and monitoring cases and advising clients. Current Status of the Litigation As of the time of this writing, there are over 100 cases filed against Atrium and Ethicon in state and federal court surrounding the C-QUR™ and Physiomesh™ products. The C-QUR™ case is consolidated in the form of a federal multidistrict litigation (“MDL”) as MDL Number 2753 in the United States District Court, District of New Hampshire.22 With regard to the Ethicon Physiomesh™ litigation, at the time of this writing there are approximately fifty (50) cases that have been filed in various federal district court jurisdictions across the country. The Judicial Panel for Multidistrict Litigation will hold a hearing on whether or not to consolidate the Physiomesh™ litigation on May 25, 2017. Many attorneys who practice in the field of medical device mass torts and are familiar with mesh litigation anticipate that many more lawsuits will be investigated and pursued surrounding several other types of composite hernia meshes. ______________ Dabbas N et al, Frequency of abdominal wall hernias: is classical teaching out of date? JRSM Short Rep., 2011 Jan; 2(1):5. 2 This is not necessarily a comprehensive list. See Yuri Novitsky et al, Hernia Surgery Current Principles 17-20 (Springer International Publishing) (2016). 3 A meta-analysis of randomized trials showed a significantly lower incidence of recurrent hernia when mesh was used. Scott N et al, Open mesh versus non-mesh for repair of femoral and inguinal hernia. Cochrane Database Syst Rev. 2002; CDO002197. 4 Yuri Novitsky et al, Hernia Surgery Current Principles 51 (Springer International Publishing) (2016). 5 Id. 6 Id. at 52. 7 Id. at 56. 8 Id. at 57. 9 For a comprehensive overview of the FDA’s 510(k) Premarket Approval Process can be found on the FDA’s website. Available 1

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at https://www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/HowtoMarketYourDevice/PremarketSubmissions/ PremarketNotification510k/ucm2005718.htm. Last visited 5/10/2017. 10 For a comprehensive discussion of “piggybacking” see Institute of Medicine Medical Devices and the Public’s Health: The FDA 510(k) Clearance Process at 35 Years 81-88; 230-252 (National Academies Press) (2011). 11 See http://www.atriummed.com/en/biosurgery/cqur.asp. Last visited 5/10/2017. 12 Available online at http://www.atriummed.com/en/biosurgery/ Documents/009967-C-QUR.pdf. Last visited 5/10/2017 13 Available online at http://www.atriummed.com/en/biosurgery/ Documents/49155_Atrium_CQur_IFU003706.PDF. Last visited 5/10/2017. 14 Deerenberg E et al, Experimental study on synthetic and biological mesh implantation in a contaminated environment. British Journal of Surgery; 99: 1735. 15 Id. at 1737. 16 Id. at 1737-1738. 17 Press Release available online at: https://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/ucm432925.htm. Last Visited 5/10/2017. 18 The Physiomesh™ product was cleared for market in 2010 and employs an absorbable plastic polymer coating known as “polyglecaparone-25.” The FDA 510(k) document for the product can be found online at https://www.accessdata.fda.gov/cdrh_docs/ pdf9/K093932.pdf. Last visited 5/10/2017. 19 Available online at: https://www.swissmedic.ch/recalllists_ dl/13779/Vk_20160525_11_e1.pdf. Last Visited 5/10/2017. 20 Numerous studies establish that some degree of tissue/mesh ingrowth is necessary for proper mesh incorporation; however there exist many theories as to why exactly certain meshes and certain mesh properties tend to incorporate better over time than others. Some leading researches in the field believe that the degree and type of collagen ingrowth is critical for proper mesh incorporation. See Klinge U et al., Are collagens the culprits in the development of incisional and inguinal hernia disease? Hernia (2006) 10:472-477, 21 See Schreinemacher M et al, Degradation of mesh coatings and intraperitoneal adhesion formation in an experimental model. British Journal of Surgery 2009; 96: 30-313; Deeken C et al, A review of the composition, characteristics, and effectiveness of barrier mesh prostheses utilized for laparoscopic ventral hernia repair. Surg Endosc (2012) 26:566-575. 22 The District of New Hampshire’s website also contains information on the MDL such as case management orders, frequently requested pleadings, and contact information. http://www.nhd. uscourts.gov/atrium-medical-corp-c-qur-mesh-products-liability-litigation. Last Visited 5/10/2017.

ROBERT E. PRICE

is a shareholder with Levin Papantonio. He focuses his practice on defective drug and medical device products liability cases. He currently spends the vast majority of his time investigating and litigating cases involving injuries attributable to failed hernia mesh implants and cases involving childhood suicide linked to the drug Concerta. During his career to date, Robert’s efforts have resulted in over $100 Million Dollars in gross settlement recoveries on behalf of his clients. He strives to be among the most effective and balanced practitioners in the field of mass torts.


M

MEDICALMALPRACTICE

EDICAL

ALPRACTICE

F

irst District dismisses petition for certiorari based on trial court ruling that notice of intent was timely; concurring opinion notes conflict between Second and Fifth Districts. Bay County Board of County Commissioners v. Seeley, So.3d , 2017 WL 1437375 (Fla. 1st DCA 4-24-2017). A patient fell off a stretcher being wheeled by county EMS personnel, and filed suit against the Board of County Commissioners for negligence. The trial court held that the case sounded in medical malpractice, and dismissed the case without prejudice to give the plaintiff a chance to comply with presuit requirements. The plaintiff sent her presuit notice of intent to initiate litigation by certified mail one business day before the statute of limitations ran, but the county received it two business days later. The trial court denied the county’s subsequent motion to dismiss, ruling that the notice had been served on time, and the county filed a petition for writ of certiorari. The First District Court of Appeal dismissed the petition per curiam, citing to Stemerman, Lazarus, Simovitch, Billings, Finer & Ginsburg, M.D’s P.A. v. Fuerst, 4 So.3d 55, 57 (Fla. 3d DCA 2009) (holding certiorari inappropriate because motion to dismiss turned on whether statute of limitations barred lawsuit, rather than whether presuit notice requirements were complied with). Judge Makar concurred with a written opinion, in which he noted that the Fifth District’s holding in Baxter v. Northrup, 128 So.3d 908 (Fla. 5th DCA 2013), regarding when service of a presuit notice of intent is effective, conflicts with the Second District’s holding in Bove v. Naples HMA, LLC, 196 So.3d 411 (Fla. 2d DCA 2016). Judge Makar found the Baxter analysis “most defensible,” and agreed with the Fifth District that the date the notice of intent is mailed is the relevant date for statute of limitations purposes. Southern District finds Medicaid caps unconstitutional, awards $33,813,495.91 in damages to family of child with severe birth injuries. Dixon v. U.S., 2017 WL 1541391(S.D. Fla. 4-17-2017). A child was born with severe brain damage after his delivering obstetrician failed to do a cesarean section. The obstetrician worked for a federally supported clinic, and the parents sued the United States under the Federal Tort Claims Act as vicariously liable for the obstetrician and the clinic. After a four-day bench trial, the Southern District Court found for the plaintiffs and entered a 52-page “Verdict and Order.” The court summarized each witness’s testimony and made written findings of fact, including that the obstetrician had never offered to do a cesarean section, although he claimed he had and blamed the mother for refusing. The court found that the obstetrician violated the standard of care in a number of ways, and that his negligence

by Scott R. McMillen & Allison McMillen

proximately caused the child’s brain damage. The Verdict and Order awarded the family almost $22 million in economic damages and over $12 million in non-economic damages. The Assistant U.S. Attorney argued for the United States that because the mother was a Medicaid patient, the non-economic damages were capped under §766.118(6), Florida Statutes, but the court disagreed. According to its analysis, although no Florida state court has directly addressed the issue, Florida state courts have “broadly applied” Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014), to hold that §766.118 caps other than the ones McCall specifically addressed are unconstitutional, and state courts would hold the Medicaid cap unconstitutional as well. In determining whether the amount it was awarding for non-economic damages was reasonable, the court had trouble finding any Florida state court appellate decisions analyzing non-economic damage awards in similar cases. Instead, it looked to Port Charlotte HMA, LLC v. Suarez, 210 So.3d 187 (Fla. 2d DCA 2016), as well as a Michigan state court case and several other federal district court decisions involving similar birth injuries, and ultimately concluded that the award was reasonable. The court did grant the United States’ request that it be permitted to pay future economic damages over time as provided in §768.78(2)(a), Florida Statutes. Because the United States conceded that it cannot be subject to ongoing obligations, the court permitted it to pay the full amount of future economic damages into a non-special needs trust, to be distributed according to a schedule set out in the order. The court declined the United States’ request that it order any money left over if the child died earlier than predicted to revert to the government.

SCOTT R. MCMILLEN

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

ALLISON MCMILLEN

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

www.FloridaJusticeAssociation.org | May/June 2017 | 33


PRODUCTSLIABILITY

DANGEROUS

TOYS

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very year, the U.S. Consumer Product Safety Commission releases its report on toy-related death and injuries. Fortunately, fatalities are not common. However, as practitioners, we must continue to be mindful of injuries to children. Even the closest watched child is susceptible to injury from a faulty toy, infant sling, crib, or stroller. And as we know from experience, many manufacturers do not promote recalls, leaving parents and consumers unaware that a dangerous product could be in the home. The most recent reporting by the CPSC captures the 2015 toyrelated deaths and injuries. While fatality information is often delayed due to death certificate reporting, there were a total of 11 reports identified as toy-related deaths among children younger than 15 years old. Riding toys encompassed the majority of those deaths, all of which were due to motor vehicle involvement. In addition in 2015, we know that an estimated 254,200 toy-related injuries were significant enough to require treatment in emergency rooms. Of those, 41% were classified as lacerations, contusions, or abrasions, with males more often injured than females accounting for 58% of the ER related injuries; 3% of the ER related injuries were severe enough to require hospital stays. The CPSC noted no statistically significant trend in the number of toy related injuries from 2011 to 2015. Nonetheless, non-motorized scooters continue to be associated with causing the most injuries in children younger than 15 years old. The number of toy recalls initiated by the CPSC has decreased dramatically since 2008, which saw 172 recalls, 19 of which involved lead. In 2009, only 50 toys were recalled, 14 due to lead. From 2010 through 2016 the number of recalled toys has averaged fewer than 30 a year. Lead related recalls also dropped dramatically to about two a year. The CPSC credits the decrease in unsafe toys due to its global system of toy safety, which started in 2009 and requires toys to be tested by independent, third party testing laboratories. According to the CPSC, the system has been instrumental in stopping dangerous toys at our ports. From 2008 -2013, the CPSC and the U.S. Customs and Border Protection worked together in stopping more than 9.8 million units of about 3,000 different toys that violated U.S. safety standards.

34 | May/June 2017 | www.FloridaJusticeAssociation.org

by Adam J. Langino and Leslie M. Kroeger Prior to 2009, toy safety standards were voluntary in the United States; however, that year the Consumer Product Safety Improvement Act of 2008 (CPSIA) was enacted and mandated that previously existing voluntary safety standards become a nationwide mandatory children’s product safety rule. At the time, FASTM International’s Standard Consumer Safety Specification for Toy Safety F-963 was considered the “gold” standard for the safety of toys. The CPSIA mandated that all toys meet the F963 safety standard. F-963 is continually revised, reviewed, and updated by an ASTM Committee known as “F-15.” Committee F15 was formed in 1973 and is comprised of approximately 900 participants thought to represent consumers, the government, and those in the industry. There are a variety of subcommittees, each of which looks at a different product area and is charged with continually updating safety standards. Presently, Richard Rosati of Bureau Vertias is chairman. Bureau Veritas, S.A. is an international testing, inspection, and certification service providing agency. In 2016, ASTM F-963 was updated to address ride-on toy safety with a new curb impact requirement. It also added new labelling requirements for toys with small coin/button batteries; temperature and current-limiting requirements for toys with lithium-ion batteries; and new requirements for toys that could expand if accidentally swallowed. Florida has no specific rule, standard, or law pertaining to toy safety. For practitioners, though, federal preemption is not a concern. By its own terms, the Consumer Product Safety Initiative Act prohibits its regulations from preempting any cause of action under state or local common law or state statutory law regarding damages claims. Independent of the CPSC, the first comprehensive epidemiological study of toy-related injuries was published in 2014. Despite recent advances in toy-safety, the study found that the annual injury rate per 10,000 children increased by 39.9% from 18.88 kids in 1990 to 26.42 in 2011. The number and rate of injuries peaked at 2 years old. Similar to the CPSC findings, males accounted for a larger percentage of injuries (63.4%) and ride-on toys accounted for the most injuries and hospital admissions. So far in 2017, only a few toys have been recalled. Just in April, Horizon Hobby recalled its remote controlled vehicles due to a fire hazard; Razor recalled its RipStik motorized caster boards due to a fall hazard; and Target recalled its Hatch & Grow Easter toys because it expands when accidentally ingested, causing potentially life-threatening intestinal obstructions.


As many parents are aware, toys are not the only products intended for children. In recent years, infant slings have become very popular. According to the CPSC, between January 2003 and September 2016, 159 incidents were reported; 17 were fatal and 142 were nonfatal. Of the 142 nonfatal incidents, 67 reports involved an injury to the infant during use of the product. Among the 67 reported nonfatal injuries, 10 involved hospitalizations.

As public safety advocates, we must continue to evaluate products intended for children, and hold manufacturers accountable for unsafe products when appropriate to do so. This will help ensure the safety of the youngest, most vulnerable members of our communities.

Earlier this year, on January 11, 2017, the Commission on product safety voted 3-2 in favor of a new federal mandatory standard intended to improve the safety of infant sling carriers. The new standard incorporated much of the prior voluntary ASTM standard (ASTM F2907-15). The new Federal Standard has a loading requirement to ensure that the sling can carry up to three times the manufacturer’s maximum recommended weight; a structural integrity requirement to ensure that after all testing, there are no seam separations, fabric tears, breakage, etc., and an occupant retention requirement to prevent the child being carried from falling out of the sling during normal use. The standard also has new warning and instruction requirements, including photographs, to show the proper position of a child in the sling; a warning statement about the suffocation hazard posed by slings and prevention measures; warning statements about children falling out of slings; and a reminder for caregivers to check the buckles, snaps, rings and other hardware to make sure no parts are broken.

ADAM J. LANGINO

is an Attorney with Cohen Milstein Sellers & Toll PLLC, and a member of their Catastrophic Injury & Wrongful Death, Managed Care Abuse, and Unsafe & Defective Products practice groups. Prior to joining Cohen Milstein, Mr. Langino was an Associate at Leopold Law and served as an Assistant Public Defender in West Palm Beach for three years. 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. Mr. Langino is a member of the Palm Beach County Bar Association, the Florida Justice Association Young Lawyer Section, and the American Association of Justice. In 2015, Mr. Langino was appointed to a six year term to the governing body of the Pound Civil Justice Institute, a national legal “think tank” dedicated to ensuring access to justice for ordinary citizens.

LESLIE M. KROEGER

is a Partner at Cohen Milstein Sellers & Toll PLLC, and a member of the firm’s Catastrophic Injury & Wrongful Death, Managed Care Abuse, and Unsafe & Defective Products practice groups. Ms. Kroeger currently serves as the Secretary of the Florida Justice Association. She serves on the Florida Bar Professional Ethics Committee and is past President and Founder of the Martin County Chapter of the Florida Association for Women Lawyers. Ms. Kroeger has achieved an AV rating from Martindale-Hubbell, and has been recognized by The Best Lawyers in America; Florida Super Lawyers; and Florida Legal Elite. She serves on Law360’s Product Liability Editorial Advisory Board and speaks frequently on strategies and tactics for litigation.

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stetson.edu/advocacyllm | 727-562-7317 www.FloridaJusticeAssociation.org | May/June 2017 | 35


EVIDENCE

LEARNED TREATISES: A PRIMER

by Matt Schultz

T

he Rule. Section 90.706, Florida Statutes, allows a crossexaminer to use “[s]tatements of facts or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing ... if the expert witness recognizes the author or the treatise ... to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter.” What Does “Authoritative” Mean? In short, “authoritative” means “reliable.” A medical publication has been held authoritative when it was “established to be a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice….” Call v. Tirone, 522 So.2d 533, 534 (Fla. 3d DCA 1988) (emphasis added). Black’s Law Dictionary does not define “authoritative,” but the Oxford Dictionary’s definition is in keeping with the “reliability” language used in Florida decisions: “authoritative: adj. Able to be trusted as being accurate or true; reliable” (emphasis added). Federal Rule of Evidence 803(18) (“Statements in Learned Treatises, Periodicals or Pamphlets”) expressly requires that the publication be “established as a reliable authority….” See also 31A Am. Jur. 2d Expert and Opinion Evidence §88 (2017) (“A treatise may be established as authoritative if the expert subject to cross-examination acknowledges that it is authoritative or reliable authority or that it is recognized and is a standard authority on the subject. It is not necessary for an expert to expressly declare that the treatise is authoritative in order for it to be deemed authoritative.”) (emphasis added) The rule permits use of a treatise if either the author or the treatise is deemed authoritative. But beware, despite the plain language of the rule, which renders the reputation of the journal in which an article appears relevant to the inquiry, it has been held that establishing the journal as authoritative may not qualify a particular article within the journal as authoritative. Whitfield v. State, 859 So.2d 529, 531 (Fla. 1st DCA 2003) (trial court properly denied use of treatise where only evidence of authoritativeness was expert’s admission that the periodical, but not the article, was authoritative). The case may be distinguished by the fact that the proponent did not attempt to lay the foundation independently and was stuck with the witness’s opinion. Laying the Predicate. A treatise may be used if either the witness recognizes it as authoritative or the court recognizes it as authoritative

36 | May/June 2017 | www.FloridaJusticeAssociation.org

should the expert refuse to do so. In establishing the predicate, keep these points in mind: • The court may recognize the treatise as authoritative and it may be used in cross-examination even if the expert being crossed is not familiar with it. Fravel v. Haughey, 727 So.2d 1033, 1034 (Fla. 5th DCA 1999). •

The court must give counsel the chance to lay the foundation through other witnesses. Id.; see also Kirkpatrick v. Wolford, 704 So.2d 708, 709-10 (Fla. 5th DCA 1998) (court did not err in finding treatise authoritative based on affidavits from proffering party’s experts).

It is appropriate for the Court to determine authoritativeness ahead of trial. Kirkpatrick, v. Wolford, 704 So.2d 708 (Fla. 5th DCA 1998) (affirming trial court’s pretrial determination that technical bulletins and committee opinions were authoritative). Because disclosure of learned treatises may be required under Northup v. Acken, 865 So.2d 1267 (Fla. 2004), a pretrial determination may not sacrifice the element of surprise.

In determining whether a treatise is authoritative, the court is not bound by the rules of evidence except on privileges. Ehrhardt, Florida Evidence §105.2 at 65 (2016 ed.)

The proponent of the treatise need not prove its authoritativeness by a preponderance of the evidence. Kirkpatrick, 704 So.2d at 710. The burden of proving authoritativeness “is easily satisfied.” Chesterton v. Fisher, 655 So.2d 170, 171 (Fla. 3d DCA 1995) (finding an abuse of discretion in trial court’s refusal to establish the authoritativeness of an article “published in a well-known publication, the New England Journal of Medicine”).

• Because you are not constrained by the rules of evidence, be sure to provide additional information supporting the reliability of the author, journal, and article, whether by affidavit from your expert or based on independent research, or both. Show the author’s credentials from his or her web bio or LinkedIn account or other publications in prestigious journals. Go to the journal’s website and print off their submission standards, peer review procedures, previous


authors of standing, etc. Search Westlaw or Lexis for other decisions permitting use of the journal as a learned treatise. Go to Pub Med’s “PMC Citation Search” page and find how many times the text has been cited and whether it has been cited in well-known journals that the court would recognize. In other words, be creative. The Witness’s Own Writings. There is no need to lay a foundation under §90.706 when crossing an expert with his or her own writings if they are admissible as prior inconsistent statements. Ehrhardt, Florida Evidence §706.1 at 921 n.4 (2016 ed.). Learned Treatises Are Not Substantive Evidence. Unlike the federal counterpart rule, which provides a hearsay exception for learned treatises, Florida law does not treat the statements within the treatise as substantive evidence. They are hearsay; thus treatises may not be used to question your own witness. Green v. Goldberg, 630 So.2d 606, 609 (Fla. 4th DCA 1993) (“Section 90.706 does not allow statements in a learned treatise to be used as substantive evidence …. [T]he plaintiff could not question his own witnesses on the bulletin.”) Likewise, a treatise may not be used to bolster your own expert’s opinion on direct examination. See, e.g., Liberatore v. Kaufman, 835 So.2d 404, 407 (Fla. 4th DCA 2003) (“Experts cannot, on direct examination, bolster their opinions by testifying that a treatise agrees with their opinion.”) Relevant to this issue is the body of law on whether and when an

expert is permitted to communicate otherwise inadmissible evidence to the jury (the so-called “conduit” rule). See my previous column for an in-depth discussion of the issue. (Evidence Spotlight: Experts as Conduits for Hearsay, FJA Journal (July/Aug. 2014) at 18-21.) RECENT EVIDENCE CASES OF INTEREST NOTE: Recent cases may not be released for publication. Whether counsel referred a client to a treating physician is protected by the attorney-client privilege. Finally weighing in in a long-standing controversial issue, the Florida Supreme Court ruled in April that the financial relationship between a law firm and treating physician is not discoverable and whether an attorney referred a client to a particular physician is subject to the attorney-client privilege. The decision distinguishes between treating physicians and experts (under the Boecher line of cases). It outlines permissible ways to impeach treating physicians (LOPs, inflated billing, etc.), but draws the line when the issue is whether counsel referred the client to a particular treater. Answering that question requires disclosure of attorneyclient communications, which is forbidden. Justice Polston (joined by Justices Canady and Lawson) dissented and urged, among other points, that an attorney’s recommendation that client see a particular treater is for the purpose of medical care and not in furtherance of legal services and therefore is not privileged. Worley v. Cent. Florida Young Men’s Christian Ass’n., 2017 WL 1366126 (Fla. 4-13-17).

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Applications available online or by phone: 305-740-0603 • Toll Free: 866-738-3817 • Email: money@fastfunds4you.com • www.fastfundsforyou.com www.FloridaJusticeAssociation.org | May/June 2017 | 37


EVIDENCE

Foreign-body presumption jury instruction is mandatory. Section 766.103(2)(b) states that the presence of a foreign body used in a medical procedure (e.g., sponge, clamp, needle, etc.) shall be prima facie evidence of negligence. The Fourth DCA held that when direct evidence of negligence exists, a plaintiff is not entitled to this presumption. The Supreme Court reversed. The presumption “is mandatory when a foreign body is found inside the patient’s body, regardless of whether direct evidence exists of negligence or who the responsible party is for the foreign body’s presence.” Dockswell v. Bethesda Memorial Hosp, 210 So.3d 1201 (Fla. 2017), reh’g denied, 2017 WL 786845 (Fla. 3-1-17).

‘person’—it was created by a machine that extracted the messages from the victim’s phone. It therefore was not hearsay and, thus, a second hearsay exception was not required.… [T]he Report is much more akin to a photograph than it is to a written assertion by an individual or business. The Report shows the state of a part of the world at a given moment in time—the contents of the victim’s cell phone—in the same way that a photograph provides a record of the visible light directly in front of the lens at a given time. Neither situation involves any interpretation or assertion.” Gayle v. State, 2017 WL 1403607 (Fla. 4th DCA 4-19-17). Consider the application to all manner of real-time data recorders, such as “black boxes” in automobiles.

Rule of completeness is not a backdoor to hearsay. Defendant in a criminal case argued his exculpatory station house statements should have been presented along with his inculpatory statements in a recorded phone call with the minor he had sexually abused. A defendant seeking to introduce his own statement is barred by the hearsay rule so he argued the rule of completeness. While the rule expressly contemplates the possibility that “any other writing or recorded statement” might be introduced, the Fourth DCA observed that “[i]n practice, the statute has never been given the broad application” defendant sought, which would turn the trial into a “voyage on a sea of hearsay.” The court thought it important that the statements were made to different persons in different settings “and could not be viewed as a single continuous narrative or process of interrogation.” The court likewise rejected defendant’s attempt to impeach the victim with his own exculpatory statements because they did not “explain or shed light upon the part already admitted.” Carter v. State, 2017 WL 1496270 (Fla. 4th DCA 4-26-17). On a related note, see Nock v. State, 211 So.3d 321 (Fla. 4th DCA 2017) (“We have held that the rule of completeness does not apply when the written or recorded statement is not introduced into evidence.”) The decision also holds that bringing out exculpatory evidence through the rule of completeness may open the door to admitting evidence of prior felonies. Id. at 324-25. The opinion does not give the attention it should to the competing policy considerations here. If an excerpt is misleading and requires additional testimony as a remedy, it makes sense that it might be corrected without calling into question the credibility of the party who didn’t create the misapprehension in the first place.

There is a reasonable expectation of privacy in “black box” data from an automobile. Defendant, charged with DUI manslaughter, challenged a warrantless search of his automobile’s data event recorder. In addressing this issue of first impression in Florida, the Fourth DCA analogized to cell phones and other computers and distinguished searches of a car’s exterior: “Extracting and interpreting the information from a car’s black box is not like putting a car on a lift and examining the brakes or tires. Because the recorded data is not exposed to the public, and because the stored data is so difficult to extract and interpret, we hold there is a reasonable expectation of privacy in that information, protected by the Fourth Amendment….” State v. Worsham, 4D152733, 2017 WL 1175880 (Fla. 4th DCA Mar. 29, 2017).

A cell phone data extraction report is not a “statement” by a “person” and thus is not hearsay. But the extracted texts are. Defendant was tried for having sex with a minor. The police extracted data from the minor’s phone, which generated an “Extraction Report” that included text messages over the previous two months, including a text by defendant admitting that he had sex with the victim. Defendant objected to the report and the texts within the report as hearsay. The Fourth DCA held that the incriminating text was a hearsay statement but constituted a party admission and thus was admissible. (Defendant did not admit sending the text but the court held that the victim laid the proper foundation, although the opinion does not explain how the victim could know who typed the text). Defendant argued that the report itself was a hearsay document and the state failed to prove an exception. The Fourth DCA disagreed: “The text message at issue was a statement, as it was made by a person (Appellant). On the other hand, the Extraction Report was not a ‘statement’ made by a 38 | May/June 2017 | www.FloridaJusticeAssociation.org

A victim’s description of an assailant is not a statement of “identification” satisfying the hearsay rule. But it may be admissible as an excited utterance, as it was in this case where the victim called 911 just a few minutes after being assaulted, and reported having a “panic attack” at the time the statement was made to EMTs, which the EMTs corroborated. Livingston v. State, 2017 WL 1202398 (Fla. 2d DCA 3-31-17). To prove a letter was mailed requires party-specific evidence; general testimony on the “normal course of business” does not suffice. Defendant challenged a judgment of foreclosure on grounds the plaintiff bank never proved it mailed the default letters necessary as a condition precedent to suit. The Second DCA agreed. It noted that evidence of a company’s routine business practice may give rise to a rebuttable presumption of mailing; but there must be testimony by a witness familiar with the business’s specific practices and there was no such evidence in this case: “The fact that [the letters] were drafted is insufficient by itself to show that they were mailed…. [T]he failure to prove that the default letters were mailed or actually delivered … requires that we reverse the final judgment….” Edmonds v. U.S. Bank Nat’l Ass’n, 2017 WL 1277738 (Fla. 2d DCA 4-5-17).

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.


www.FloridaJusticeAssociation.org | May/June 2017 | 39


CIVILPROCEDURE

JUROR CONCEALMENT NECESSITATES A NEW TRIAL by Roy D. Wasson I. Introduction: As all good trial lawyers are well aware, the key to a good verdict is a good jury. There are two ways to lose out on a verdict due to juror nondisclosures. Both of them are somewhat avoidable. One is to never get the verdict in the first place because you do not elicit important information about the jurors’ backgrounds that render them unfair to your client. The other is that a favorable verdict is later overturned because your opponent uncovers information that was not disclosed during voir dire. This article: 1) discusses the three-prong test for overturning verdicts tainted by juror nondisclosures; 2) addresses techniques to use in jury selection to obtain important information from prospective jurors you can use in exercising peremptory strikes; 3) informs readers about the requirements for obtaining, and techniques for conducting, juror interviews; and 4) summarizes the evolution of Florida law on the timing requirements for conducting juror background investigations.

include the character and extensiveness of the litigation experience, and the juror’s posture in the litigation.” Id. (citations omitted). “To be material, a prospective juror’s litigation history does not necessarily have to involve an action similar to the one in which he or she may be required to serve.” Id. at 341.

II. Three-Prong Test for Overturning Verdicts Due to Juror’s Failure to Disclose: In De La Rosa v. Zequeira, 659 So.2d 239 (Fla. 1995), the Florida Supreme Court established the three-prong test applicable to cases of alleged juror nondisclosure. There the Court held:

Instead, this materiality prong focuses on whether the attorneys would likely have stricken the juror, had the truth been known. “A juror’s nondisclosure of information during voir dire is considered material if it is so substantial that, if the facts were known, the defense [or plaintiff] likely would peremptorily exclude the juror from the jury.” Murray v. State, 3 So.3d 1108, 1121‑22 (Fla. 2009) (quoting McCauslin v. O’Conner, 985 So.2d 558, 561 (Fla. 5th DCA 2008)). The focus should be on what counsel “would have done during voir dire had the litigation history been disclosed.” Fine v. Shands Teaching Hops. & Clinics, Inc., 994 So.2d 426, 427‑28 (Fla. 1st DCA 2008).

In determining whether a juror’s nondisclosure of information during voir dire warrants a new trial, courts have generally utilized a three-part test. First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence. Id. at 241 (citations omitted). A. Relevance & Materiality: “Nondisclosure is considered material if it is substantial and important so that if the facts were known, the [complaining party] may have been influenced to peremptorily challenge the juror from the jury.” Roberts v. Tejada, 814 So.2d 334, 341 (Fla. 2002) (citing De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla. 1995))(citations omitted). “Remoteness in time is one aspect to consider in determining the impact, if any, of a juror’s prior exposure to the legal system on his present ability to serve in a particular case.” Id. at 342 (citations omitted). “Other factors may 40 | May/June 2017 | www.FloridaJusticeAssociation.org

The relevance and materiality prong does not mean that the undisclosed cases must involve the same type of claims or issues as the case on which the juror sits. See Roberts v. Tejada, 814 So.2d 334 (Fla. 2002). In Wilcox v. Dulcom, 690 So.2d 1365 (Fla. 3d DCA 1997), reversal was warranted where a juror failed to disclose that she had been involved in a collections dispute and a party in a domestic action. Although the action concerned personal injury arising from an automobile accident, the court held that “[t]he litigation history of a potential juror is relevant and material to jury service, even if that history involves a different type of case.” Id. at 1366.

A juror’s nondisclosure of prior litigation is relevant, but it is not necessarily material. See Roberts, 814 So.2d at 341 (citation omitted); Parra v. Cruz, 59 So.3d 211, 213 (Fla. 3d DCA 2011) (“The respondents rely on the misplaced notion that any prior litigation history coming to light after trial is grounds for a new trial.”). Courts evaluate materiality based on the “circumstances of each case” using the following test: “Nondisclosure is considered material if it is substantial and important so that if the facts were known, the [moving party] may have been influenced to peremptorily challenge the juror from the jury.” Roberts, 814 So.2d at 341 (citations omitted). In applying this test, courts consider several factors: Remoteness in time from the undisclosed litigation, the character and extensiveness of the prior litigation (and similarity to the instant case litigation), and the juror’s posture in the litigation. Id. at 342-43 (citations omitted); see also Duong v. Ziadie, 125 So.3d 225, 228 (Fla. 4th DCA 2013).


Cases in which the nondisclosure was deemed material include: De La Rosa (plaintiff entitled to a new trial where juror failed to disclose that he was a defendant in at least six lawsuits; juror may sympathize with defendants or develop a bias against legal proceedings in general and the omitted information prevented counsel from making an informed judgment which in all likelihood would have resulted in a peremptory challenge); Bernal v. Lipp, 580 So.2d 315 (Fla. 3d DCA 1991) (plaintiff entitled to a new trial where juror failed to disclose that he had been a defendant in a personal injury case one year previously); Industrial Fire & Cas. Ins. Co. v. Wilson, 537 So.2d 1100 (Fla. 3d DCA 1989) (defendant and his insurance company were entitled to a new trial where juror failed to disclose that he had been insured by the company and that the company had denied his claim for benefits); Mobil Chemical Co. v. Hawkins, 440 So.2d 378 (Fla. 1st DCA 1983), rev. denied, 449 So.2d 264 (Fla.1984) (defendant was entitled to a new trial where juror concealed fact that she was related to plaintiff’s family and had been represented by an attorney who had an interest in the case).

counsel’s lack of interest in whether prospective jurors had relatives who had been convicted of crimes, [juror’s] failure to disclose that information was not material”).

Other cases include Kelly v. Community Hospital of Palm Beaches, 818 So.2d 469 (Fla. 2002) (in a fraud case resulting in a verdict for the defendants, one juror, who said he was a retired lawyer when in fact he had been suspended by the Florida Supreme Court and disbarred by the United States Supreme Court, did not disclose that he had been involved as a defendant in a number of cases involving fraud, and another juror was the petitioner in a recently-filed divorce case and alleged that her husband had significant undeclared income); Davis v. Cohen, 816 So.2d 671 (Fla. 3d DCA 2002) (juror in automobile negligence case resulting in a verdict for the plaintiff failed to reveal that nine years earlier he was the plaintiff in an automobile negligence case); Am. Med. Sys., Inc. v. Hoeffer, 723 So.2d 852 (Fla. 3d DCA 1998)(juror failed to reveal judgment against her for $ 45,000 in debtcollection action); Young v. State, 720 So.2d 1101 (Fla. 1st DCA 1998) (remanded for further jury interviews where juror in criminal sexual abuse case did not reveal she may have been victim of sexual abuse); Castenholz v. Bergmann, 696 So.2d 954 (Fla. 4th DCA 1997) (juror failed to reveal five distinct actions against her); Wilcox v. Dulcom, 690 So.2d 1365 (Fla. 3d DCA 1997) (juror in auto negligence case disclosed that she had settled an auto negligence claim but did not reveal that she had been involved in a collections dispute and had been a party in a domestic action).

The party seeking a new trial based on juror nondisclosure need not demonstrate any intent by the juror to deceive the parties and the trial court. “[A] juror’s nondisclosure need not be intentional to constitute concealment.” Roberts v. Tejada. “[W]hen a party discovers posttrial that a juror may have concealed a material fact--whether actively, passively, or unintentionally--confidence in the integrity of the jury process and in a fair verdict is called into doubt.” State Farm Mut. Auto. Ins. Co. v. Lawrence, 65 So.3d 52, 55 (Fla. 2d DCA 2011).

Cases in which the non-disclosure was deemed immaterial include: Leavitt v. Krogen, 752 So.2d 730 (Fla. 3d DCA 2000) (although the juror admitted during the post-trial interview that she had seen the debt-collection complaint filed ten years earlier on her behalf, she did not know if it had been filed, and did not think the questions posed by counsel and the court applied to her; further, the party seeking a new trial was the plaintiff, and collections actions are usually favorable to the plaintiff); Garnett, 767 So.2d at 1229 (order of new trial reversed in automobile negligence case resulting in verdict for plaintiff where juror did not reveal that she had been at fault in an automobile accident involving only property damage because any juror bias would have been in favor of defendant, where defendant did not strike another juror who had been in an accident, and where defendant struck only jurors who were still suffering from injuries sustained in accidents); James v. State, 751 So.2d 682, 684 (Fla. 5th DCA 2000) (“based on defense

B. Concealment By Juror: The second prong of the De La Rosa test concerns juror concealment of the information sought during jury selection. The concealment prong is met when the juror is “squarely asked for” the information and the juror fails to speak the truth. Wiggins v. Sadow, 925 So.2d 1152, 1155 (Fla. 4th DCA 2006). The concealment prong may be met if the juror fails to respond to questions from either the court or the parties. See Taylor v. Magana, 911 So.2d 1263, 1270 (Fla. 4th DCA 2005). As will be addressed below, in a recent case the Fifth District has essentially held that the “concealment” prong can be satisfied by a panel member failing to reveal prior litigation history on a juror questionnaire, and by failing to volunteer the information when another juror was asked about her prior litigation history,

In order to establish this element, the party seeking a juror interview must “‘demonstrate (among other things) that the voir dire question was straightforward and not reasonably susceptible to misinterpretation.’” Rodgers v. After School Programs, Inc., 78 So.3d 42, 45 (Fla. 4th DCA 2012) (quoting Gamsen v. State Farm Fire & Cas. Co., 68 So.3d 290, 294 (Fla. 4th DCA 2011)). A response cannot constitute concealment when “‘the juror’s response … about litigation history is ambiguous, and counsel does not inquire further to clarify that ambiguity.’” Id. (quoting Gamsen). Finally, “[i]f the concealment by a juror occurred during voir dire questioning about the juror’s prior experiences with litigation, the identity of the juror as a litigant in a prior legal proceeding must be shown.” Sterling v. Feldbaum, 980 So.2d 596, 599 (Fla. 4th DCA 2008) (citing Beyel Bros., Inc. v. Lemenze, 720 So.2d 556, 557 (Fla. 4th DCA 1998)). C. Due Diligence of Complaining Party: The “due diligence” test requires that counsel provide a sufficient explanation of the type of information which potential jurors are being asked to disclose, particularly if it pertains to an area about which an average lay juror might not otherwise have a working understanding.” Roberts, 814 So.2d at 343. “Thus, resolution of this ‘diligence’ issue requires a factual determination regarding whether the explanations provided by the judge and counsel regarding the kinds of responses which were sought would reasonably have been understood by the subject jurors to encompass the undisclosed information.” Id. The third prong addresses whether the cause of the failure to elicit the information was due to the fault of the complaining party. If a juror mentions involvement in litigation and the complaining party www.FloridaJusticeAssociation.org | May/June 2017 | 41


CIVILPROCEDURE does not ask follow-up questions, the party cannot then obtain a new trial because of undisclosed information relating to the litigation. See Rodgers, 78 So.3d at 45; Taylor, 911 So.2d at 1268. However, if the juror unambiguously denies involvement in prior litigation, counsel need not ask follow-up questions. See Taylor, 911 So.2d at 1270. Westgate Palace, LLC v. Parr, No. 5D16-1503; 2017 Fla. App. LEXIS 5109; 42 FLW D858 (Fla. 5th DCA 4-13-2017) is notable because the neither the defendant nor plaintiff’s counsel questioned a certain prospective juror about her prior litigation history. The court explained why such questioning was not necessary under the particular facts of the case: Furthermore, unlike Egitto, where the party questioned the juror on some, but not all, of the juror’s litigation history, Westgate had no indication that Juror 121 had any litigation history, and thus it had no reason to question her regarding her attitude towards the courts or her concept of justice. Cf. 980 So.2d at 1240. We reject the Parrs’ argument that Westgate did not exercise diligence during voir dire because its questions were too imprecise to elicit a response from Juror 121. We find that this argument lacks merit because Juror 121’s questionnaire and her responses during jury selection gave Westgate’s attorney no reason to delve further into her litigation or criminal history. See Taylor v. Magana, 911 So.2d 1263, 1270 (Fla. 4th DCA 2005). The trial court informed the potential jurors that they should answer questions posed to others if those questions were relevant to them as well. Westgate’s counsel had nothing to work with regarding past litigation or criminal history for Juror 121. Westgate, supra, at ** 7 (emphasis added). Thus, the due diligence prong may be satisfied by the juror’s failure to respond to the court’s questions, a jury questionnaire, or questions calling for a response by all panel members. III. Investigation of Jurors’ Backgrounds

A. Timing: During Trial or After Trial:

In Roberts v. Tejada, 814 So.2d 334 (Fla. 2002), the Supreme Court reversed the Third District insofar as it held that a check of jurors’ litigation history had to be accomplished prior to the end of the trial. This Court noted that “[t]he trial lawyer cannot be expected to be both in the courtroom presenting a case and at the same time at a different location, or even in a different location of the same courthouse at the same time.” However, Florida law on juror nondisclosure is evolving, as technology advances permit faster and easier research into jurors’ backgrounds. Courts are now ready to require lawyers to conduct jury investigations during trial, instead of after the verdict. In Tricam Industries., Inc. v. Coba, 100 So.3d 105 (Fla. 3d DCA 2012), the court eroded some of our ability to rely on waiting until after the verdict to check for juror nondisclosures, stating as follows in affirming the trial court’s denial of a motion for new trial: 42 | May/June 2017 | www.FloridaJusticeAssociation.org

Additionally, we note that during the trial, the trial court suggested that the attorneys run the jurors’ litigation histories electronically before the jury commenced deliberations and while an alternate juror was still available. While the plaintiff’s trial counsel noted he had encountered problems regarding undisclosed juror litigation history in previous cases, he stated he was satisfied with the jurors’ responses and declined the offer to run the jurors. We acknowledge that the Florida Supreme Court, in Roberts, held that trial counsel are not categorically required to run the jurors’ litigation histories before the end of trial in order to satisfy the “due diligence” prong. Roberts, 814 So.2d at 344. Trial attorneys are, however, permitted to conduct such searches, just as trial courts are permitted to suggest them. Notably, the Florida Supreme Court, in Roberts, did not hold that trial courts cannot, in the appropriate circumstances, consider a trial counsel’s refusal to run a juror’s litigation history as one of several factors under a due diligence inquiry. Id. at 114 (emphasis by court). Although the author of this article appealed that issue to the Florida Supreme Court, that court refused to hear the issue because conflict jurisdiction was granted on another issue. Therefore, the Third DCA’s language in Coba remains intact. Third DCA Judge Kevin Emas in a later concurring opinion stated his beliefs regarding when investigations into jurors’ backgrounds should be conducted, as follows: [I]n Roberts v. Tejada, 814 So.2d 334 (Fla. 2002), the Supreme Court held that the diligence prong does not require a litigant to perform a search of a juror’s (or prospective juror’s) litigation history before the conclusion of the jury selection process. In doing so, the Supreme Court overruled this Court’s decision to the contrary. See Tejada v. Roberts, 760 So.2d 960 (Fla. 3d DCA 2002). In Tejada we held: The time to check the jurors’ names against the clerk’s lawsuit index is at the conclusion of jury selection. If a party does not request the opportunity to make the record search, then that litigant will not be heard to complain later about nondisclosure of information which could have been disclosed by reference to the clerk’s index. Id. at 966. In reversing our decision, the Supreme Court discussed at length the unsuitability of a statewide rule that would uniformly require a party to conduct a litigation history check prior to the conclusion of jury selection: The Third District held that public records must be consulted at the time of jury selection, but then proceeded to note that chief judges should consider the problem and determine if it is feasible to have such information available. This internal contradiction reflects the vulnerability of the holding in the context of present reality. In a perfect world, access to the information would be immediately available in all courtrooms or actually provided as jury pool


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CIVILPROCEDURE information. However, such circumstances do not presently exist and the diversity of resources available in our vast and diverse state to accomplish the task as ordered at this time creates an unacceptable burden that cannot have uniform application. Our court system does not yet have the uniform capacity to provide a readily accessible system for undertaking a review of the court index together with ready access to the court files. Under present circumstances, the burden of imposing such a prerequisite to a later valid challenge to juror nondisclosure would be onerous, most particularly to sole practitioners representing clients in litigation. Therefore, that portion of the Tejada decision is specifically disapproved. Roberts, 814 So.2d at 344-45 (emphasis added). The Supreme Court held only that the “diligence” prong of De La Rosa cannot be read to uniformly require that a search for a juror’s litigation history be conducted before the conclusion of jury selection. In other words, in the absence of a specific pretrial order in an individual case, a party is not barred from seeking a new trial based on juror concealment of litigation history simply because that litigation history search was conducted after the trial. The Supreme Court rejected the broad proposition that any motion for new trial based upon a juror’s concealment of litigation history required (in order to satisfy the diligence prong) that the search be conducted at the conclusion of jury selection rather than at the conclusion of the trial. However, the Supreme Court did not prohibit a trial court, in an individual case and in the proper exercise of its discretion, from imposing a reasonable requirement of conducting a records check at the conclusion of jury selection. For example, in a scheduled three-week trial, where all parties are represented by counsel, where tens of thousands of dollars have been spent investigating and preparing the case for trial over a period of several years, it would appear, consistent with De La Rosa and Tejada, that a trial court could, after giving all parties an opportunity to be heard on the issue, direct the parties to conduct a properly limited public records search. Such an order should provide that, at the conclusion of the jury selection process, but before the selected jurors (including alternates) are formally sworn to try the case, all parties will be given a reasonable opportunity to conduct a search of the litigation history of the selected jurors. The court could reasonably limit the search to the public records of those dockets of the Circuit and County Courts of the circuit which are accessible online and without charge, and require that all search results be shared with opposing counsel and with the court. The court could then provide counsel with an opportunity, following the search and prior to swearing in the jury, to challenge for cause any juror who concealed or failed to fully disclose their litigation history. The court, in its discretion, could permit additional questioning of a juror where the 44 | May/June 2017 | www.FloridaJusticeAssociation.org

search reveals that a juror may have concealed or failed to fully disclose litigation history. It would also be advisable for the court to inform all prospective jurors, at the commencement of jury selection, that a search of the public records will be performed to verify the jurors’ litigation history. Such an instruction would underscore the need for jurors to be accurate and complete in their answers to these questions, and forewarn them that this information will eventually be discovered, increasing the likelihood that jurors will be forthcoming about their litigation history during the jury selection process. Such a procedure, under the appropriate circumstances of an individual case, would be consistent with the holding and rationale of the Supreme Court’s decision in Tejada, while serving the equally important interest of avoiding the retrial of a case because of an error which could have been discovered and corrected before the formal trial even begins. In light of the extraordinary amount of time, energy and expense that is often required for the modern civil trial, giving trial judges the discretion to impose these common-sense procedures, in the appropriate exercise of their discretion, is not simply reasonable, but laudable. This should not be understood as advocating a blanket rule or a standing pretrial order requiring all litigants in every case to obtain a litigation history of all selected jurors before they are formally sworn to try the case. However, on a caseby-case basis, a trial court has the authority to require that a party wishing to obtain certain public and easily-accessible litigation history of a prospective juror do so before the jury is sworn to try the case. Borroto v. Garcia, 103 So.3d 189-91 (Fla. 3d DCA 2012)(Emas, J., specially concurring)(emphasis by court). Another court ready to require investigation into jurors’ backgrounds before the end of trial is the Fourth District, which addressed the issue as follows: We have seen a growth of post-trial juror interview requests based upon juror non-disclosure of prior litigation information. In Roberts, the court specifically disapproved of the Third District’s holding that public records must be consulted at the time of jury selection or the issue of juror non-disclosure of litigation history would be waived. Roberts, 814 So.2d at 344 (citing the Supreme Court’s approval in De La Rosa of Judge Baskin’s dissent in Zequeira v. De La Rosa, 627 So.2d 531, 534 (Fla. 3d DCA 1993)). The Supreme Court did so, because the technology was not present in 2002 to search the public records and pull the files. However, it did suggest that “[w]here possible, trial judges should allow counsel to check records, if such a request is made, and it can be done without unwarranted delay. Certainly a small delay at the beginning of a trial would be better than having to do a retrial of a case after it has been concluded.” Roberts, 814 So.2d at 345.


Our technology has come a long way in the years since Roberts was decided. All counties now have their official public records online, and court files are also online. A paralegal in the courtroom can most likely search the public records of each juror as the juror is called during voir dire. While such searches are not perfect and would be able to pull records only in the county in which the case is being tried, it could result in catching obvious non-disclosures, such as the case here. The time may have come to rethink how the courts handle juror non-disclosure so as to prevent so much litigation over the issue and so many retrials of cases to the detriment of the entire judicial system. Hillsboro Mgmt, LLC v. Pagono, 112 So.3d 620, 625 (Fla. 4th DCA 2013). IV. Motion to Interview Jurors A. Grounds and Requirements: Florida Rule of Civil Procedure 1.431(h) permits a party to request an interview with a juror within ten days after the verdict if the party believes there are grounds for a legal challenge to the verdict. A trial court should grant a juror interview only when the motion contains sworn factual allegations that, if proven, would warrant a new trial. Egitto v. Wittman, 980 So.2d 1238, 1240 (Fla. 4th DCA 2008). “While trial courts should be hesitant to grant motions for post-trial juror interviews, ‘[w]here there are reasonable grounds to believe concealment of a material fact has taken place, a party is entitled to conduct a jury interview.’” Barrios v. Locastro, 166 So.3d 863, 865 (Fla. 4th DCA 2015)(quoting Sterling v. Feldbaum, 980 So.2d 596, 598 (Fla. 4th DCA 2008)). “A juror interview is warranted if the moving party demonstrates reasonable grounds to believe that nondisclosure of relevant and material information occurred.” State Farm Mut. Auto. Ins. Co. v. Lawrence, 65 So.3d 52, 56 (Fla. 2d DCA 2011). In Pembroke Lakes Mall, Ltd. v. McGruder, 137 So.2d 418 (Fla. 4th DCA 2012) the court discussed what is needed to establish such “reasonable grounds” for a post-trial jury interview: Post-trial juror interviews should be rarely granted and the sanctity of the jury process as well as the privacy rights of the jurors themselves should be closely guarded and protected. However, where there are reasonable grounds to believe concealment of a material fact has taken place, a party is entitled to conduct a jury interview. Allegations in the motion for interview cannot be bottomed on mere conclusory statements based on speculation and surmise that, if interrogated, the jurors might have something to say that would be material to whether or not the court should award a new trial. Id. at 426 (quoting Rodgers v. After Sch. Programs, Inc., 78 So.3d 42, 45 (Fla. 4th DCA 2012) (citations, alterations, and quotation marks omitted)). Id. at 426-28. But see Rodgers, 78 So.3d at 46 (“As to the juror with a common name, there was insufficient proof that she was the same person who was involved in all of the prior civil cases.” (citation omitted)).

The procedure for a motion to interview jurors is set forth in Fla. R. Civ. P. 1.431(h): (h) Interview of a Juror.—A party who believes that grounds for legal challenge to a verdict exist may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to the challenge. The motion shall be served within 10 days after rendition of the verdict unless good cause is shown for the failure to make the motion within that time. The motion shall state the name and address of each juror to be interviewed and the grounds for challenge that the party believes may exist. After notice and hearing, the trial judge shall enter an order denying the motion or permitting the interview. If the interview is permitted, the court may prescribe the place, manner, conditions, and scope of the interview. B. Necessity of Hearing on Motion to Interview: The rule governing juror interviews provides: “After notice and hearing, the trial judge shall enter an order denying the motion or permitting the interview.” Fla. R. Civ. P. 1.431(h). Florida courts have interpreted this rule to require the court to hold a hearing before denying the motion to interview jurors, at least if the motion is facially valid. See State Farm Mut. Auto. Ins. Co. v. Lawrence, 65 So.3d 52, 55 n.1 (Fla. 2d DCA 2011) (“Florida Rule of Civil Procedure 1.431(h) requires that the trial court hold a hearing before granting or denying a motion for juror interviews.”). In the Westgate case cited above, the court found that the trial court abused its discretion in denying defendant Westgate’s motion to interview Juror 121. That juror was notable for being the only juror who responded affirmatively when the panel was asked whether they were excited to be on jury duty. Westgate’s post-trial research allegedly revealed twenty criminal cases against Juror 121; seven resulted in convictions, of which four resulted in a period of her incarceration. The court held that Juror 121’s concealment of her past, combined with her enthusiasm to serve as a juror, deprived Westgate of the opportunity to make an informed judgment about its use of a peremptory challenge. See De La Rosa, 659 So.2d at 241; Leavitt, 752 So.2d at 732-33. The court reversed the trial court’s order denying Westgate’s motion to interview Juror 121 and remanded with instructions to conduct the requested interview. Thereafter, the trial court will apply the De La Rosa factors to determine whether Westgate is entitled to a new trial. As can be seen, juror concealment can cost you a verdict because a juror incapable of being fair remained on the jury, or because you recover a nice sum but the defense gets a new trial due to nondisclosures by a juror who was favorable to your side of the case. It will always be impossible to have a jury that is totally unbiased and fair to both sides, but with the tools available to root out unfair jurors applied as the foregoing case law requires, all we can do is: Keep Trying! Case Summaries in Civil Procedure – State Court Requesting Relief from Technical Admissions: Transcript Required Although recognizing the general principle that a party will be relieved of the effect of technical admissions resulting from the failure to www.FloridaJusticeAssociation.org | May/June 2017 | 45


CIVILPROCEDURE

respond to another party’s request for admissions, at least where a motion for relief from admissions is made, or the record otherwise contains evidence contradicting the admitted facts, the court in Sudman v. O’Brien, No. 2D16-286; 2017 Fla. App. LEXIS 6337 (Fla. 2d DCA 5-5-2017) affirmed the trial court’s denial of relief from the admissions based upon the appellant’s failure to provide a transcript of the proceedings in which the motion for relief was made. Id. at *4 (“Sudman maintains that she attempted to ask for such relief at the hearing on trustee’s objection but that the trial court refused to hear her oral motion. However, that fact is not apparent from our record because Sudman did not provide a transcript of the hearing or statement of the evidence pursuant to Florida Rule of the Appellate Procedure 9.200(b)(4). See Appelgate v. Barnet Bank of Tallahassee, 377 So. 1150, 1152 (Fla. 1979)(‘In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.’)).” Voluntarily Binding Arbitration and Voluntary Trial Resolution— Appeal to District Court of Appeal Limited to Constitutional Issues In Kaplan v. Epstein, No. 4D16-1834; 2017 Fla. App. LEXIS 6182 (Fla. 4th DCA 5-3-2017), the Fourth District Court of Appeal dismissed an appeal for lack of jurisdiction from the trial court’s judgment affirming an arbitrator’s award made following voluntary binding arbitration conducted pursuant to Section 44.104, Fla. Stat. That statute provides for a direct appeal from a binding arbitration decision to the circuit court limited to review on the record for “[a]ny alleged failure of the arbitrators to comply with the applicable rules of procedure or evidence (b) any alleged partiality or misconduct by an arbitrator prejudicing the rights of any party [or] (c) whether the decision reaches a result contrary to the Constitution of The United States or of the State of Florida.” Section 44.104(12) provides in part that “[n]o further review shall be permitted unless a constitutional issue is raised.” Although “legislative staff notes prepared at the of the 1999 amendments provide evidence of the Legislature’s intent to apply the jurisdictional bar to voluntary trial resolution but not voluntary binding arbitration,” the Fourth District dismissed the second appeal from the arbitration award holding that the text of the statute was clear, precluding resort to the legislative history in analyzing the statue. Dismissal for Failure to Prosecute – No Time Deadline When Improper Notice Given In Coral Gables Imports, Inc., v. Suarez, No. 3D16-849; 2017 Fla. App. LEXIS 5753 (Fla. 3d DCA 4-26-2017) the court affirmed the trial court’s order vacating a dismissal for failure to prosecute pursuant to Fla. R. Civ. P. 1.540 (b)(4). Although the motion for relief from the dismissal order was not filed until fourteen months after dismissal of the action the court held that the one year time deadline for motions under rule 1.540 did not apply because the dismissal order was void, having been entered following a notice of lack of prosecution being sent to plaintiff’s attorney’s improper address. The court noted that the attorney’s Notice of Change of Address had been filed prior to the FWOP notice, which was sent to the incorrect previous address. Further, “the notice of change of address would have satisfied the record activity requirement of rule 1.420 (e), thereby precluding dismissal of the action for lack of prosecution.” Id. at *2.

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Forum Non-Conveniens – Motion Filed By Defendant Resident of Forum State Is Both “Puzzling and Strange” In Taurus Int’l Mfg v. Friend, No 3D16-1960; 2017 Fla. App. LEXIS 5759 (Fla. 3d DCA 4-6-2017), the plaintiff, a Kentucky citizen and resident, sued the defendants, which were incorporated in Florida with their principal place of business in Miami-Dade County. In affirming the denial of the motion to dismiss, the court reaffirmed the “strong presumption against disturbing plaintiffs’ initial forum choice” and followed an earlier decision in which the court had observed that ‘[a] forum non-conveniens argument coming from a party sued where he resides is both puzzling and strange.’” Id. at *2. Summary Judgment—Untimely Submission of Evidence Citing Fla. R. Civ. P. 1.510(c), which provides that evidence in opposition to motions for summary judgment must be served at least five days prior to the hearing or delivered no later than 5:00 p.m. two business days prior to the hearing, the Third District Court of Appeal in Les Chateaux at Int’l Gardens Condo. Ass’n v. Cuevas & Assocs., P.A., No. 3D15-2935; 2017 Fla. App. LEXIS 5750 (Fla. 3d DCA 4-262017), affirmed entry of summary judgment notwithstanding the Appellant’s claim that an affidavit submitted in opposition thereto created a genuine issue of material fact, due to its late filing. The court rejected the Appellant’s argument “that the trial court erred in denying Appellant’s request to consider its untimely affidavit in opposition to the motion for summary judgment … [noting] that, in the absence of a transcript of the proceeding at which this request was made and denied, we cannot review whether the trial court abused its discretion in this regard.” Id. at *1 (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979)). Deposition of Child as Material Witness Granting certiorari, the Second District Court of Appeal has quashed a trial court’s order granting a protective order precluding the deposition of the plaintiff’s minor son, who was a witness to the automobile accident that formed the basis for the litigation. The child was eight years old at the time of the collision, and eleven at the time of the hearing. Rejecting the plaintiff’s argument that the trial court properly considered “her son’s age, lack of maturity, and experience,” the court noted that she provided no evidence on those points, and “also did not provide any evidence of how the taking of the deposition may be detrimental to her son.” Akhnoukh v. Benvenuto, No. 2d16-4018; 2017 Fla. App. LEXIS 5334 (Fla. 2d DCA April 19, 2017).

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.


CLOSINGARGUMENT

MURPHY AND THE

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

I

t is clear that attorneys often walk a tightrope during closing arguments between what may be deemed proper or improper comments, and that issues regarding closing arguments have always been a fertile area for appellate decisions. However, one line of civil cases1 is quite clear: whether the allegedly improper comment was objected to, or was it not. In Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla. 2000), the Supreme Court established standards for unobjected-to comments that make it difficult, if not impossible, to raise those comments as a viable issue on appeal. Murphy provides “an escape valve with a very narrowly defined parameter and of extremely limited application . . .” Id. at 1026. One court has recognized the narrowness and limits of that “valve” by stating that “Murphy’s lesson to trial counsel is clear – a remedy will almost always be tied to a contemporaneous objection.” Bocher v. Glass, 874 So.2d 701, 704 (Fla. 1st DCA 2004). See, e.g., Burger King Corp. v. Lastre-Torres, 202 So.3d 872, 873 (Fla. 3d DCA 2016) (Rothenberg, J., concurring) (noting that the matter would certainly have been reversed and remanded had the improper comments been objected to). Murphy’s basic premise may be characterized as this: if a comment was so outrageous that you are seeking a new trial because it was made, then why on earth didn’t you object? If the lack of an objection to the allegedly outrageous comment is part of a strategy to wait back and see how the trial turns out and then raise the issue, then forget that, because the bar at that point will be set at a level that is almost impossible to satisfy. Allowing the trial court to address alleged errors by way of a specific, contemporaneous objection is a bedrock principle under Florida law, and Murphy reinforces the need to allow the trial court to address issues as they arise. Murphy and its Standards As noted above, Murphy clarified and severely limited the ability of a party to claim error when comments during closing were not objected to. The party must raise the issue in a motion for new trial, and must demonstrate that the argument was 1) improper, 2) harmful, 3) incurable, and 4) so damaging to the fairness of the trial that the public’s interest in our system of justice requires a new trial. Murphy, 766 So.2d at 1028. As will be seen, satisfaction of these four elements is “extraordinarily demanding.” Mercury Ins. Co. v. Moreta, 957 So.2d 1242, 1250 (Fla. 2d DCA 2007); Platz v. Auto Recycling & Repair, Inc., 795 So.2d 1025, 1027 (Fla. 3d DCA 2001).

Murphy makes general reference to Rule 4-3.4 of the Rules Regulating The Florida Bar, which states that a lawyer shall not: in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused. R. Regulating the Fla. Bar 4-3.4(e). Yet, under Murphy, merely being improper is far from satisfactory. The comment must also be harmful, which “carries a requirement that the comments be so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the cause by a jury.” Murphy, 766 So.2d at 1029. “[T]he improper closing argument comments must be of such a nature that it reaches into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for such comments.” Id. at 1030. In other words, “[h]armfulness turns on how the argument affected the validity of the trial.” USAA Cas. Ins. Co. v. Howell, 901 So.2d 876, 879 (Fla. 4th DCA 2005). In order to be deemed incurable, the complaining party must “establish that even if the trial court had sustained a timely objection to the improper argument and instructed the jury to disregard the improper argument, such curative measures could not have eliminated the probability that the unobjected-to argument resulted in an improper verdict.” Murphy, 766 So.2d at 1030. Demonstrating that a comment was incurable is an “extremely difficult” burden to carry. Id. Finally, the fourth Murphy prong requires that “the argument so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Id. The Court noted that this element was “narrow in scope,” such as arguments that appeal to “racial, ethnic, or religious prejudices.” Id. Summarizing the scope of the Murphy standards, the Court later commented that “[t]o justify granting a motion for a new trial based on unobjected-to improper argument, the trial court must find that the improper argument is of such a nature as to reach into the validity of the trial itself to the extent that the verdict could not have been obtained www.FloridaJusticeAssociation.org | May/June 2017 | 47


CLOSINGARGUMENT but for such comments.” Engle v. Liggett Group, Inc., 945 So.2d 1246, 1271 (Fla. 2006) (emphasis added). A trial court’s ruling on a motion for new trial raising a Murphy challenge is then reviewed by an appellate court under an abuse of discretion standard “because applying such standard sufficiently recognizes that the trial judge is in the best position to determine the propriety and potential impact of the allegedly improper closing argument.” Murphy, 766 So.2d at 1030-31; but see Sullivan v. Kanarek, 79 So.3d 900, 903-04 (Fla. 2d DCA 2012) (noting that if a successor judge rules on a motion for a new trial, then that judge’s decision is not afforded the same deference as would be given the trial judge). Cases interpreting Murphy. As if satisfying the Murphy standards is not hard enough, courts have emphasized that practitioners should carefully craft their motion for new trial in order to preserve the right to seek review. Clearly, Murphy requires raising the unobjected-to comments in the motion for new trial, or that argument is waived on appeal. See Santiago v. Abramovitz, 96 So.3d 1091 (Fla. 4th DCA 2012) (finding that appellant did not preserve Murphy argument in motion for new trial). Yet, even if the issues are raised in a motion for new trial, they must be raised adequately. For example, in Bradley v. Southern Baptist Hospital, 943 So.2d 202, 207 (Fla. 1st DCA 2006), the court found that appellants failed to preserve a Murphy issue where the motion for new trial did not include all allegedly improper comments and therefore “did not sufficiently apprise the trial court” of the improper comments. In USAA Cas. Ins. Co. v. Howell, 901 So.2d 876, 879 (Fla. 4th DCA 2005), the court likewise held that it would only address those comments specifically set forth in motion for new trial. Numerous cases have held that comments, though improper, did not satisfy the other Murphy standards and therefore did not warrant a new trial. See, e.g., Philip Morris USA, Inc. v. Tullo, 121 So.3d 595 (Fla. 4th DCA 2013) (affirming denial of new trial because of comments by plaintiff’s counsel that tobacco companies failed to take responsibility for their actions and comparing the distribution of cigarettes to the distribution of heroin did not satisfy the Murphy standards); Carnival Corp. v. Jimenez, 112 So.3d 513 (Fla. 2d DCA 2013) (reversing grant of new trial based on unobjected-to comments by defense attorney that plaintiff’s attorney had “scripted” testimony with treating physician); Health First v. Cataldo, 92 So.3d 859 (Fla. 5th DCA 2012) (affirming denial of motion for new trial where comments invited the jury to punish the defendant, attacked a witness in a factually incorrect manner and suggested that the jurors had been chosen by God to provide for the plaintiff); Aarmada Prot. Sys. 2000, Inc. v. Yandell, 73 So.3d 893 (Fla. 4th DCA 2011) (affirming denial of motion for new trial despite comments that included personal attacks, a comment on the financial disparity between the parties, and an “exploitation of a motion in limine); City of Orlando v. Pineiro, 66 So.3d 1064 (Fla. 5th DCA 2011) (improper comments including value of life arguments, comments on opposing counsel’s age and on expert witnesses did not rise to Murphy standards); Mercury Ins. Co. v. Moretta, 957 So.2d 1242 (Fla. 2d DCA 2007) (affirming denial of motion for new trial despite comments that violated trial court’s instructions about not addressing the defendant’s alleged litigation practices and alleged attempt to shirk its contractual duties); USAA Cas. Ins. Co. v. Howell, 901 So.2d 876 (Fla. 4th DCA

48 | May/June 2017 | www.FloridaJusticeAssociation.org

2005) (denying motion for new trial premised on comments that compared the defendant with the Iraqi Minister of Information, and other comments that violated a pre-trial order); Thompson v. Hodson, 825 So.2d 941 (Fla. 1st DCA 2002) (improper comments by defense counsel that the plaintiff chose only to sue his client and not any of other numerous doctors did not satisfy Murphy). One additional case deserves mention in slightly more detail. In Sullivan v. Kanarek, 709 So.3d 900 (Fla. 2d DCA 2012), the trial court denied a motion for new trial based on unobjected-to comments, though the Second District ultimately reversed. The case was in a very unique posture in that the Second District had considered it once before, though the Florida Supreme Court’s Companioni v. City of Tampa, 51 So.3d 452 (Fla. 2010) decision came out in the interim. Further, the trial court expressed severe misgivings about conduct of defense counsel and noted that all of the improprieties “could not be gleaned from the court record in this case.” Id. at 905. At that point, the defense moved to disqualify the trial judge, and that motion was granted. A new trial judge denied the motion for new trial and the appeal followed. Interestingly, the Second District applied the Murphy standards and concluded that The instances of alleged misconduct apparent from the record do not by themselves or together amount to fundamental error. However, the instances of misconduct reflected in the record must be considered in light of the fact that certain misconduct or behavior of defense counsel was not reflected in the record but was noted by the presiding trial judge. Id. at 904. The court ultimately reversed the decision to deny the motion for new trial and ordered that a new trial be granted. Again, this is a remarkably unique circumstance where the appellate court did not find that the Murphy standards had been met, but rather relied on other comments by the predecessor judge which it used to justify granting the motion. In the years since Murphy was decided, no Florida appellate decision has ever found that the lofty standards were satisfied and a new trial was warranted solely on the basis of certain unobjected-to comments. But see Robinson v. Ward, 203 So.3d 984 (Fla. 2d DCA 1016) (relying on Murphy and affirming order granting new trial based not on improper comments during closing, but where counsel repeatedly violated court orders which exposed the jury to inadmissible evidence). However, the court in Johnnides v. Amoco Oil Co., Inc., 778 So.2d 443 (Fla. 3d DCA 2001) was so offended by counsel’s comments and conduct that it concluded that even if the errors were not preserved (though they were), “we have no doubt that the final argument meets all the conditions for granting of a new trial stated in Murphy.” Id. at 445. In Johnnides, the court described a few of defense counsel’s numerous flagrantly improper arguments. Defense counsel repeatedly accused plaintiff’s counsel of “trying to confuse you guys” and literally pointed his finger at plaintiff’s counsel. He referred to matters that had been excluded from evidence and accused plaintiff’s counsel of hiding them from the jury. He referred to other matters not in evidence which were not even true. Id. at 443 n.1.


The court highlighted one argument as particularly egregious. Defense counsel, “based on nothing but his own cynical imagination, boldly and unashamedly accused opposing counsel of conspiring with the plaintiff’s expert to commit a fraud on the jury:” So what does [plaintiff’s counsel] have to do? He goes out and finds Dr. Padva and says, Dr. Padva, what we are going to do, we are going to try to get a naive jury. And then what we are going to do is, I need you to look at all of these tests and somehow come up with some scientific gobble-dee-cock that confuses the jury. Id. at 444. Counsel should be cautious about relying on Johnnides for fundamental error. As the cases discussed above demonstrate, other courts have found similar arguments not to be fundamental. Absent such a flood of deplorable arguments, it is unlikely that a court would find fundamental error. In another article in this series, we will address how to properly preserve objections to improper arguments. ____________ Unobjected-to comments by prosecutors in criminal cases are subject to a traditional fundamental error analysis, fundamental error being the type of error that “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Robards v. State, 112 So.2d 1256, 1271 (Fla. 2013)(quoting Brooks v. State, 762 So.2d 879, 899 (Fla. 2000)). 1

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.

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

www.FloridaJusticeAssociation.org | May/June 2017 | 49


FJAAPPELLATEPRACTICESECTION

SAYING THE MAGIC WORDS: PROTECTING YOUR CAUSE CHALLENGES BY ASKING THE RIGHT QUESTIONS by Tom Seider

E

very litigant in Florida has a right to a fair and impartial jury— “an absolute prerequisite to our system of justice.” Williams v. State, 638 So.2d 976, 978 (Fla. 4th DCA 1994).1 Voir dire acts as a safeguard to that right. If a party’s questioning reveals even a reasonable doubt about whether a juror can be impartial, the trial court should dismiss that juror for cause. Id. at 978-79. And, close calls on impartiality should be resolved in favor of dismissal. Id.2 But, whether a prospective juror can be fair is not always a question easily answered. A juror is allowed to come to voir dire with preexisting opinions and biases. Gonzalez v. State, 143 So.3d 1171, 1177 (Fla. 3d DCA 2014). Dismissal for cause is reserved for only those jurors who cannot set their preexisting feelings aside to decide a case based on the evidence. Pacot v. Wheeler, 758 So.2d 1141 (Fla. 4th DCA 2000). Put differently: “A juror is not impartial when one side must overcome a preconceived opinion in order to prevail.” Pelham v. Walker, 135 So.3d 1114, 1116 (Fla. 2d DCA 2013). It is up to a trial lawyer to discover, through incisive questioning of the panel, whether any jurors hold intractable preconceived opinions. The author, as an appellate lawyer, professes no expertise in talking to juries.3 But, this article does hope to identify questions that have been recognized, at the appellate level, as eliciting a basis for excusing a juror for cause. More than that, these are questions that have led to trial courts being reversed for denying challenges for cause. This is significant, because a trial court’s discretion will almost always carry the day when it comes to cause challenges. Indeed, as the Florida Supreme Court has explained: “There are few aspects of a jury trial where we would be less inclined to disturb a trial judge’s exercise of discretion, absent clear abuse, than in ruling on challenges for cause in the empaneling of a jury.” Cook v. State, 542 So.2d 964, 969 (Fla. 1989). So, it is always worth taking notice when an appellate court overrides that discretion. To that end, below is a list of (paraphrased) questions that appellate courts have deemed sufficient to establish grounds for cause: a. Do you feel my client is not starting out on an even playing field? See Nash v. General Motors Corporation, 734 So.2d 437, 439 (Fla. 3d DCA 1999). 50 | May/June 2017 | www.FloridaJusticeAssociation.org

b. Is my client maybe starting out with a strike or half a strike against him? See Jaffe v. Applebaum, 830 So.2d 136, 137-38 (Fla. 4th DCA 2002); Club West, Inc. v. Tropigas of Florida, Inc., 514 So.2d 426, 427-28 (Fla. 3d DCA 1987). c. Is there a burden in your mind that my client has to overcome? See Goldenberg v. Regional Import and Export Trucking Co., Inc., 674 So.2d 761, 762-64 (Fla. 4th DCA 1996). d. Do you hope you can be fair, but you just aren’t sure? See Michael v. State, 796 So.2d 1292, 1293 (Fla. 3d DCA 2001). e. Do you feel that defendant has a little bit of an edge in this case? See Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990, 99496 (Fla. 4th DCA 2004).4 Admittedly, it might seem odd to treat the wording of these questions as talismanic. But, different trial courts (and appellate courts) can have very different ideas about whether a juror has truly revealed a reasonable doubt as to his or her impartiality. A trial court will have a much harder time disagreeing on impartiality, however, when a juror answers “yes” to an appellate-court-endorsed question. Thus, and as strange as it might seem, using a pre-approved colloquialism can greatly increase the likelihood—both at the trial and appellate level—of winning a cause-challenge argument. Take Nash v. Gen. Motors Corp., 734 So.2d 437 (Fla. 3d DCA 1999), as an example. There, the plaintiff used the magic words, asking a juror if her preexisting opinions would affect whether the plaintiff was “starting off with an even playing field or a strike against it.” Id. at 439. The juror answered by saying she was a fair person. Id. The trial court denied plaintiff’s cause challenge, but the Third District reversed on appeal, holding that the juror had not shown a willingness to set aside her biases. Id. at 440. And, for the opposite scenario, consider Samuels v. State, 11 So.3d 413 (Fla. 4th 2009), where the trial court denied a cause challenge directed at a juror who, when asked whether she could be fair, responded with, “I would do my best.” Id. at 415-16. The Fourth District affirmed on appeal, finding that that the juror had not said “she was uncertain whether she could be impartial,” and noting that the juror had not said anything about a party starting with a strike against it. Id. at 417. Both Nash and Samuels underscore the significance of using specific language during voir dire. It might be worth it, then, to swap out a


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FJAAPPELLATEPRACTICESECTION

more general jury-panel question (“Would you have difficulty awarding pain-and-suffering damages?”), with one of the particular examples listed above (“Because of your feelings on non-economic damages, is my client starting with a strike against him?”). See Jaffe, 830 So.2d at 137-38; Club West, Inc., 514 So.2d at 427-28. These questions can also help insulate a problematic juror from rehabilitation.5 Inevitably, a juror who answers “yes” to one of the above-listed questions will be the subject of rehabilitation attempts. Opposing counsel will ask, “Now, when you said plaintiff had a halfstrike against her, you didn’t mean that you couldn’t be fair, did you?” But, once a juror admits to favoring one party over the other, a later change in opinion “is properly viewed with some skepticism.” Club West, Inc., 514 So.2d at 427.

TLEL A POWERFUL WAY TO CONNECT

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

More importantly, if a juror’s partiality is predicated on personal experience or belief—as opposed to a “lack of familiarity with the justice system”—rehabilitation is impossible. See Matarranz v. State, 133 So.3d 473, 482 (Fla. 2013). So, by asking the right questions, you can hopefully shut the door on rehabilitation before your opponent even stands up. See, e.g, Jaffe, 830 So.2d at 138 ([W]e…conclude that any attempt to rehabilitate [the juror] would have been futile in light of his responses to appellants’ questions.”). ______________ Civil and criminal cases may be cited interchangeably for causechallenge principles. See §913.12, Fla. Stat. (“The qualifications of a juror in a criminal case shall be the same as their qualifications in a civil case.”). 2 Here is an obligatory note on preservation: “[T]o preserve challenges for cause to prospective jurors, the defendant must object to the jurors, show that he or she has exhausted all peremptory challenges and requested more that were denied, and identify a specific juror that he or she would have excused if possible.” Matarranz v. State, 133 So.3d 473, 482 (Fla. 2013) (internal quotations omitted). 3 Commentary on this subject is better left to the experts. See, e.g., Keith Mitnik, Don’t Eat the Bruises: How to Spoil Their Plans to Foil Your Case (2015). 4 Other questions that appellate courts have blessed—but to a lesser degree—include: i. “Do you feel that my client is not starting out with a clean slate?” See Overton v. State, 801 So.2d 877, 894 (Fla. 2001). 1

ii. Will you have any difficulty in setting those negative feelings aside? See Pacot, 758 So.2d at 1142; James v. State, 736 So.2d 1260, 1261-63 (Fla. 4th DCA 1999). 5 For a more in-depth examination of juror rehabilitation, see Andrew Harris’s excellent appellate-section article in the June 2014 edition of the FJA Journal. TOM SEIDER

is an associate with Brannock & Humphries, a firm specializing in appeals and trial support. He received his J.D. from the University of Virginia School of Law, and his B.A. from the University of Florida, where he was a member of Phi Beta Kappa.

52 | May/June 2017 | www.FloridaJusticeAssociation.org


FJAYOUNGLAWYERSSECTION

ON THE HORIZON AND BEHIND ME NOW by Jonathan T. Gilbert

F

or me, this year has been filled with successes and challenges, both of which arose in part from the responsibilities and commitments that come with acting as Chair of the Young Lawyer Section of the FJA. Before I address those, I must address one issue that is of particular interest to me and, I am quite sure, many of you. On The Horizon: Protecting Access To Care Act Of 2017 Those of us who practice in the areas of medical malpractice, product liability and nursing home litigation have no doubt heard about and perhaps read the proposed federal bill, H.R. 1215, attempting to detrimentally limit these practice areas by setting nationwide caps at $250,000 for noneconomic damages, among other measures. Its supporters call this bill the “Protecting Access to Care Act of 2017”,1 which is laughable when you analyze its application and how it would in no way protect a patient’s access to healthcare. The argument from its proponents is that it would limit the costs accumulated by the practice of defensive medicine. But the analysis tells a different story.2 And yet, this bill has strong support in Congress and from the President, and like many trial lawyers in Florida and around the country, it has me concerned about my practice of law, which is heavily comprised of medical malpractice claims. It also has me concerned since I’m about eight years in and have maybe thirty to go in my career. I don’t have the fortune to simply get more selective about my cases and ride off into the sunset a bit earlier or a bit later than expected. The type of career-path-altering bills being promulgated in D.C. may hit the young lawyers harder than any other attorney demographic. Even if you don’t handle claims involving med mal, drug defects, or nursing home neglect, expect to have your niche flooded with others who have been bumped out of their practice areas, should a bill like H.R. 1215 pass. Candidly, the cap amount being proposed in H.R. 1215 was in place in Florida for the entire time I practiced law until the McCall decision came out in 2014. However, this bill goes much further by nearly eliminating joint liability for economic loss, basically wiping out punitive damages, severely limiting attorneys’ fees, and potentially

shortening the statute of limitations in applicable cases. Worse still, it places a cap of $250,000 on a case regardless of the number of parties, the number of claims, or the theories of liability. Imagine a very realistic scenario where you are considering whether to take on representation of a client for a medical malpractice case that is predominantly comprised of pain and suffering damages, will have five or so potential defendants, and will cost around $200,000 to fund through trial. In that scenario, where is the upside if the noneconomic damages cap is $250,000? And why would the defendants and their insurers agree to pay anything without a trial when their worst day is splitting a bill of $250,000 or so? And if you think it takes a while to get your cases tried now, imagine if med mal cases hardly ever settled! Although litigation involving medical malpractice, drugs and devices, and nursing home neglect would still be possible, few would see this as a viable path toward helping their clients and making a living if this bill was passed in its current form. Furthermore, the current checks and balances in place due to the risks associated with exposure to liability acting to encourage patient safety and promulgate safer alternates in the practice of medicine would be severely diminished. In other words, our clients would not only lose out on their access to the courts when negligence occurs but will be more likely to experience medical negligence as well. Even at present, medical negligence is the third leading cause of death in the United States behind only heart disease and cancer.3 It’s almost twice as common as the number four killer, respiratory disease, and it accounts for nearly 10% of all deaths each year in the US.4 Certainly, capping healthcare provider exposure in the event of medical errors is not going to lessen the incidents of death from medical negligence. It would probably do the opposite. Medical malpractice is a real thing. It happens because the practice of medicine is subject to human error. An arbitrary cap on the amount of harm it can cause simply denies justice to its victims. In addition to med mal death cases, birth trauma medical negligence litigation will suffer if H.R. 1215 is passed. Oftentimes, the noneconomic damages in brain injury or severe mechanical trauma birth cases can be a major driving factor in taking a case, in spending time and money to litigate the case, and in its settlement appeal to the defense. All three of those factors are severely impacted when you place a cap on the noneconomic damages, the attorneys’ fees, and the other limits being proposed in H.R. 1215. A particular concern to me is the effect it would have on brachial plexus palsy injury claims, which is a niche practice area in which I handle a number of cases in Florida and nationwide. It is my concern that, should H.R. 1215 or some altered version of it with similar effect become the law of the land, claims arising from these mechanical type nerves injuries, which can lead to substantial lifetime impairments, will not have enough value for plaintiff attorneys to be willing to undertake the necessary expenditure of time, effort and money to represent clients for such claims. While more catastrophic birth injury cases, like those where prolonged fetal distress leads to brain injury, would still merit attention from trial attorneys due to their substantial claims for economic damages, these mechanical injury cases may be relegated to something akin to small claims that frequently end up being litigated www.FloridaJusticeAssociation.org | May/June 2017 | 53


FJAYOUNGLAWYERSSECTION pro se (and good luck to any family who tries to handle a birth trauma med mal case pro se) or generally falling by the wayside. For those of us able to help, the AAJ could use our support to combat bills like H.R. 1215. Perhaps at the time you are reading this, H.R. 1215 has already been voted on – and hopefully it fails – but even if it does, there will be more opportunity to get it through next session and perhaps in the years to come, depending upon how the midterm elections turn out. This type of bill is one about which we must be continually vigilant, since the repercussions it can have on our clients and their rights are enormous. Oh, and this is not the only federal bill that attacks our practice of law and our clients’ rights. Indeed, there are numerous such bills being pushed by tort reformers in the Legislature this session that would have an adverse effect on our clients.5 Behind Me Now: YLS Year In Review And Thank Yous While things look so dire in D.C. with bills like H.R. 1215, Tallahassee has been quite a contrast. As my time to serve as the Young Lawyer Section Chair comes to an end (and they kick me out in lieu of a younger, smarter, and better-looking Chair), it’s encouraging to look at what this organization is accomplishing in our state capitol. Our Young Lawyer Section had about a dozen of its members, more than I can think of in any past years, in Tallahassee during session for FJA’s Jordan Evert McCracken Young Lawyer Lobby Days on March 21-23. I must thank my section officers and board members who attended our Lobby Days or otherwise made special contributions to our efforts this year. Also, I couldn’t have done it this year without help from my predecessors, Vanessa Brice and Jason Whittemore, who continue to help with our agenda even after their time to serve as Chair has ended. A special thanks to Cassidy Perdue, Amanda Dunn, Dan Vasquez, Michael Kalil, Ben Whitman, Alan Perez, and Peter Hunt for stepping up (or continuing to go above the call of duty) this year to make our goals a reality. There are others who deserve thanks and who have been involved behind the scenes. It was truly a team effort. The folks at FJA have been instrumental in making our plans work as well. Thanks to the folks at FJA for always being awesome: Captain Paul Jess, John Brazzell, Alexis Simoneau, my next door neighbor Malik Houghton, The Devin Dudley, Gena Matthews, John “the Wildcat” Fox, Kristen Broner, and of course, the indefatigable GC Murray. Your hard work and enthusiasm in what you do is inspiring to me. Finally, I am grateful to my law firm for all their help and especially the partners at my firm for supporting and backing me while I fulfilled my duties as Chair. Leading up to our lobbying trip to Tallahassee, our teamwork allowed us to accomplish some important goals, which we first laid out at our section retreat last July in Orlando. We launched a Young Lawyer Section Listserv (a tree house with a cardboard sign reading “No adults allowed!” comes to mind); we participated in Law School Outreach events at various law schools across the state to spread the word about FJA membership to those soon to join our ranks as attorneys; we put in motion plans for a YLS cruise and a YLS ski trip; during election season we waved signs for candidates, knocked on voter’s doors, made phone calls, and gave money; we mostly self-funded, organized and conducted the E. Earle Zehmer Memorial Mock Trial Competition for Florida law school students and stocked it full of lawyers as jurors and judges as judges, and we put on a wonderful cocktail reception 54 | May/June 2017 | www.FloridaJusticeAssociation.org

at the old Orlando Courthouse on the evening between the mock trial rounds; and we continued to advance our ongoing activities: the young lawyer Boot Camp series, our affiliation with the Women’s Caucus and the Florida Bar Young Lawyers Division, participation in/volunteering for the Al Cone Seminar, and preparing for another successful Young Lawyer Seminar on the first day of the FJA Annual Convention in June. These things would not have been possible without the collaborative effort of our section members, the FJA and it leaders, and continued support from our law firms. For those of you reading this who are young lawyers but haven’t been involved or want to get more involved, please come out to our section meeting and elections on Thursday, June 15th during the Annual Convention in St. Pete Beach at find out what we are planning for the upcoming year. Our trip to Tallahassee (“the Paris of the Panhandle” as a wise man once called it) was to lobby to advance the most proactive FJA agenda I have seen in the six sessions during which I’ve lobbied in Tallahassee as a lawyer. And in the meetings we had with State Representatives and Senators, whether Republican or Democrat, they listened to our message, heard us out on bills for mandatory bodily injury auto insurance coverage and sex trafficking law, and engaged us as an organization that now has more clout and capital than ever before. Being a part of our trial lawyer group has meaning and purpose that is well recognized and received by the State Legislators. FJA has made huge advancements in the extent to which our voice is heard by them, and, as I pass the gavel to Heather Jones, I’m pleased to have watched that happen over the past several years. There’s work to be done, and threats are coming from new places, but FJA has kept us on the right path to achieving its core purpose: protecting the rights of our clients. ______________ 1

You can read the actual text of H.R. 1215 here: https://www.congress. gov/bill/115th-congress/house-bill/1215/text. 2 You can look at the analysis on this at: https://www.cms.gov/ Research-Statistics-Data-and-Systems/Statistics-Trends-andReports/ NationalHealthExpendData/index.html; See also Carrier, Reschovsky, Mello, Mayrell, and Katz, Physicians’ Fear of Malpractice Lawsuits Are Not Assuaged By Tort Reforms, Health Affairs, 29 No. 9 (2010). 3 The research and analysis to support this finding can be located in the British Medical Journal or at this link: http://www.bmj.com/ content/353/bmj.i2139. 4 An open letter from the Johns Hopkins Medicine Department of Surgery to the Director of the U.S. Centers for Disease Control and Prevention detailing these findings can be found here: https://www. documentcloud.org/documents/2822345-Hopkins-CDC-letter.html. 5 Take a look at H.R. 1118 (aims to provide immunity to sellers of dangerous drugs), H.R. 1565 (allows medical groups to develop their own standards of care that preemptive others), and H.R. 1704 (implements new expert witness requirements for plaintiffs). JONATHAN T. GILBERT

Jon is an attorney with Colling Gilbert Wright & Carter where he represents his clients for personal injury and medical malpractice claims. Jon is the outgoing Chair of the Young Lawyer’s Section of the FJA.


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

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Auto Accidents | Slip and Falls | Nursing Home Neglect

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


MEMBEROUTREACH

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JON HERSKOWITZ RECOGNIZED AT FJA MEMBER APPRECIATION RECEPTION FJA President Jimmy Gustafson recognized member Jon Herskowitz of Baron & Herskowitz at the Miami membership reception for his leadership in directing a $550,000 Cy Pres award to The Florida Justice Association Research of Education Foundation. Mr. Herskowitz was the originator of a class action lawsuit against Tire Kingdom for consumer fraud and the resulting settlement left a significant amount of unclaimed funds. Mr. Herskowitz, along with co-counsel Stephan Rosenthal and Seth Miles selected Miami Dade Legal Services and The Florida Justice Association Research and Education Foundation to be the recipients of these unclaimed funds through Cy Pres. FJA deeply appreciates the attorneys for their leadership and thoughtfulness in dedicating these funds to The Florida Justice Association Research and Education Foundation. 1- President Jimmy Gustafson recognizes Attorney Jon Herskowitz for his contribution.

2 - (L-R) Trey Lytal, Rob Paulk, Jon Herskowitz, Leslie Kroeger, Paul Jess and Jimmy Gustafson

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FJA LEADERS SPREAD THE MISSION TO PRESERVE THE CIVIL JUSTICE SYSTEM ACROSS THE STATE The FJA “MARs” are “Membership Appreciation Reception” events that take place throughout the state prior to and immediately after legislative session.

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These events are a great opportunity to network with fellow FJA members and learn about FJA’s legislative strategy to preserve the civil justice system. 1 - Palm Beach: President Jimmy Gustafson, Greg Barnhart, Paul Jess and Trey Lytal 2 - Palm Beach: Todd Romano, Nancy Romano, John Romano and Mohamed Chekali 3 - Miami-Dade: Rob Paulk, Philip Gold 4 - Miami-Dade: Rob Paulk, Shannon Del Prado, Lake H. “Trey” Lytal, III 5 - Miami-Dade: Dwight Hill and Janpaul Portal 6 - Tampa: President-Elect Dale Swope 7 - Tampa: FJA member Representative Sean Shaw shaking hands with members

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8 - Tampa: FJA members networking 9 - Panama City: Waylon Thompson, Tom Furr and Kim Syfrett 10 - Panama City: Keston Robinson, Monique Ser imager and Larry Perry 11 - Tallahassee: Matt Foster, Don Hinkle and Jim Messer 12 - Tallahassee: Salt Weekley, John Brazzell and Hubert Brown 13 - Tallahassee: Haben Abraha and GC Murray www.FloridaJusticeAssociation.org | May/June 2017 | 57


EAGLESPOTLIGHT SPONSOR - $3,000

2016-2017 EAGLE RECRUITING CHAMPIONS Since May 1, 2016 Recruiter Name

Recruiting Value

Ricardo M. Martinez-Cid Lake H. Lytal, III James W. Gustafson, Jr. Robert Mayer Rubenstein Fred A. Cunningham Tiffany M. Faddis Paul D. Jess Philip A. Gold Richard E. Chait Michael S. Davis Jason F. Lamoureux T. Michael McLeod Leslie Mitchell Kroeger Jason D. Weisser F. Catfish Abbott Jason Mulholland Skip Pita Nathan P. Carter Peter Hunt Stephen P. Hoskins Alexander Murphree Clem Scott R. Jeeves Jeffrey M. Liggio Dale M. Swope David J. Zappitell Todd E. Copeland Donald M. Hinkle Robert T. Joyce Olivia D. Liggio Troy Rafferty Lillian J. Reyes-Joyce Stephen Watrel

# of Recruits

$77,000 $58,000 $45,000 $45,000 $20,000 $18,500 $13,000 $11,500 $11,000 $10,000 $10,000 $10,000 $ 9,500 $ 9,000 $ 8,000 $ 8,000 $ 8,000 $ 7,500 $ 7,500 $ 7,000 $ 6,500 $ 6,500 $ 6,000 $ 6,000 $ 6,000 $ 5,250 $ 5,000 $ 5,000 $ 5,000 $ 5,000 $ 5,000 $ 4,800

20 14 8 5 2 3 2 2 5 2 2 2 1 3 2 2 2 4 4 1 2 2 2 2 3 3 1 1 1 1 1 1

Recruiter Name

Recruiting Value

Anthony Quackenbush Waylon Thompson Laurie J. Briggs Philip M. Burlington Nathaniel E. Green James W. Guarnieri, Jr. Andrew A. Harris Steven R. Jaffe Bruce R. Kaster John S. Mills H. L. (Larry) Perry Keith A. Pierro Eric Tinstman Vanessa Brice Joseph V. Camerlengo, Jr. Charles Edward Cartwright Mark W. Clark David Eltringham Rachel Wagner Furst Adriana Gonzalez Celene Humphries Nicholas C. Johnson Damian B. Mallard Stephen A. Marino, Jr. Anthony T. Martino C. Richard Newsome Chad Mitchell Pilon Matthew Nichols Posgay Jason Kyle Whittemore Daniel G. Williams Michael J. Winer Glenn M. Klausman

# of Recruits

$4,500 $4,500 $3,000 $3,000 $3,000 $3,000 $3,000 $3,000 $3,000 $3,000 $3,000 $3,000 $2,000 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $1,500 $ 750

2 2 2 1 1 2 1 1 1 2 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 2 1 1 1 1 As of 5/9/17

2017-2018 EAGLE RECRUITING CHAMPIONS Since May 10, 2017 Recruiter Name Matthew K. Foster Curry G. Pajcic Dale M. Swope Fermin Lopez Hubert R. Brown Richard E. Chait Thomas W. Carey Cassidy Perdue Vanessa Brice James W. Gustafson, Jr. H. L. (Larry) Perry Paul M. Anderson

Recruiting Value $26,000 $24,500 $10,000 $ 9,500 $ 9,000 $ 9,000 $ 7,500 $ 7,500 $ 6,000 $ 6,000 $ 5,500 $ 5,000

# of Recruits 7 9 1 4 3 4 5 5 2 2 2 1

Recruiter Name Peter Hunt Vivian H. Fazio James W. Guarnieri, Jr. Tiffany M. Faddis Waylon Thompson Ricardo M. Martinez-Cid Jonathan T. Gilbert Philip A. Gold Celene Humphries Kimberly J. Syfrett Lake H. Lytal, III Gregory M. Yaffa

Recruiting Value $3,250 $3,000 $3,000 $2,500 $2,500 $2,000 $1,500 $1,500 $1,500 $1,500 $ 750 $ 750

# of Recruits 1 1 2 1 1 1 1 1 1 1 1 1

As of 6/19/17


BENEFACTOR - $10,000

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

Thomas A. Culmo

Upgraded by Dale M. Swope

William Andrew Dean

Recruited by Ricardo M. Martinez-Cid

Upgraded by Leslie Mitchell Kroeger

PATRON - $5,000

Dana N. Brooks Cooper Upgraded by Matthew K. Foster

Sean M. Cleary Recruited by Ricardo M. Martinez-Cid

Jeffrey D. De Carlo Upgraded by Ricardo M. Martinez-Cid

James E. Fasig Upgraded by Matthew K. Foster

Jay Halpern Upgraded by Ricardo M. Martinez-Cid

Lewis N. Jack, Jr. Recruited by Ricardo M. Martinez-Cid

Roger N. Messer Recruited by Stephen P. Hoskins

Andrew Needle Upgraded by Michael S. Davis

Andrew A. Norden Recruited by Lake H. Lytal, III

Daniel F. O’Shea Upgraded

Daryl D. Parks Recruited by Hubert R. Brown and Matthew K. Foster

Armando R. Payas Recruited by Fermin Lopez

Manuel Alex Reboso Upgraded by Ricardo M. Martinez-Cid

Brett M. Rosen Upgraded by Ricardo M. Martinez-Cid

Gregory Charles Ward Recruited by Ricardo M. Martinez-Cid

Randy Marc Weber Recruited by Skip Pita

Stuart J. Weissman Upgraded by Eric Tinstman

James D. Wilkerson, Jr. Recruited by Lake H. Lytal, III

Andrew Y. Winston Upgraded

SPONSOR - $3,000 Frank A. Ashton Recruited by Curry G. Pajcic

A. Dax Bello Recruited by Ricardo M. Martinez-Cid

David Buckner Recruited by Ricardo M. Martinez-Cid

Michael J. Celeste, Jr. Recruited by Richard E. Chait

Michael S. Davis Recruited by Nathaniel E. Green

J. Robert Bell, III Recruited by Lake H. Lytal, III

Robert B. Boyers Recruited by Ricardo M. Martinez-Cid

Kenneth J. Bush Recruited by Ricardo M. Martinez-Cid

Judson L. Cohen Recruited by Ricardo M. Martinez-Cid

Jarrett Lee DeLuca Upgraded by Ricardo M. Martinez-Cid

www.FloridaJusticeAssociation.org | May/June 2017 | 59


EAGLESPOTLIGHT

David Eltringham Upgraded by Leslie Mitchell Kroeger

SPONSOR - $3,000 Corinne C. Hodak Recruited by Curry G. Pajcic

Jeffrey M. Fenster

Philip S. Kinney Recruited by Curry G. Pajcic

Brett K. Findler Recruited by Lake H. Lytal, III

Ethan F. Kominsky Recruited by Andrew A. Harris

Robert J. Fiore Recruited by Ricardo M. Martinez-Cid

Brian Frank LaBovick Recruited by Peter Hunt

Rachel Wagner Furst Recruited by Ricardo M. Martinez-Cid

Hal Mardenborough Recruited by H.L. (Larry) Perry

Nathaniel E. Green Recruited by Michael S. Davis

Scott T. McCullough Upgraded by Vivian H. Fazio

Howard S. Grossman

Seth Miles Recruited by Ricardo M. Martinez-Cid

Andrew A. Harris Upgraded by Peter Hunt and Gregory M. Yaffa

Nicol John Panebianco Recruited by Michael S. Davis

Robert L. Parks Recruited by Ricardo M. Martinez-Cid

Christopher Nemat Shakib Recruited by Curry G. Pajcic

Alan M. Pickert Recruited by Curry G. Pajcic

Kimberly J. Syfrett Upgraded by Richard E. Chait

Gregory D. Prysock Recruited by Curry G. Pajcic Poorad Razavi Recruited by Leslie Mitchell Kroeger Rafael J. Roca Recruited by Lake H. Lytal, III Ami Romanelli Recruited by Lake H. Lytal, III Robert M. Scott Recruited by Matthew K. Foster

Eric Tinstman Recruited by Ricardo M. Martinez-Cid Carlos E. Verdecia Recruited by Ricardo M. Martinez-Cid Anthony B. White Recruited by Steven R. Jaffe Mark Zamora Recruited by Stephen Watrel

ASSOCIATE - $1,500 Juan Carlos Barreno Recruited by Fermin Lopez Thomas J. Brown Recruited by Hubert R. Brown John Alexander Caracuzzo Recruited by Lake H. Lytal, III Matthew S. Carney Recruited by Thomas W. Carey Charles Edward Cartwright Recruited by Adriana Gonzalez Arthur Collin Cherry Recruited by Matthew K. Foster Samuel Aaron Coffey Recruited by Vivian H. Fazio Samuel S. Cohen Recruited by Peter Hunt Christopher R. Cumberland Recruited by Kimberly J. Syfrett Rick M. Ellsley Recruited by Anthony Quackenbush

Jason R. Fraxedas Recruited by Jonathan T. Gilbert Adriana Gonzalez Recruited by Charles Edward Cartwright Royce C. Haddad, Jr. Recruited by Thomas W. Carey Gregory P. Huber Recruited by Lake H. Lytal, III Peter Hunt Upgraded by Lake H. Lytal, III

Peter Mineo, Jr. Frank Charles Miranda Recruited by James W. Guarnieri, Jr. Ricardo Morales Recruited by Richard E. Chait Katherine Neal Recruited by Thomas W. Carey Randy V. Pelham Recruited by Matthew K. Foster

Robert J. Shuttera Recruited by Thomas W. Carey Salvatore J. Sicuso Recruited by Richard E. Chait Lisa Finaldi Simmons Recruited by Vanessa Brice Kerri C. Smith Recruited by David J. Zappitell

William W. Price Recruited by Lake H. Lytal, III

Kenneth J. Sobel

J. Freddy Rhoads Recruited by Peter Hunt

Melissa D. Solevilla Recruited by Thomas W. Carey

Andrea Lewis Recruited by Laurie J. Briggs

Todd D. Rosen Recruited by Ricardo M. Martinez-Cid

David Walker Recruited by Lake H. Lytal, III

Maegen Peek Luka Recruited by Celene Humphrie

Michelline Haynes Ruth Recruited by Curry G. Pajcic

Gabriel F. Zambrano Recruited by David J. Zappitell

Ramon Malca Recruited by Rachel Wagner Furst

Ernesto L. Santos, Jr. Recruited by Ricardo M. Martinez-Cid

Michael Hamilton Kugler Recruited by Laurie J. Briggs Mark Allen Lee Recruited by Richard E. Chait

David Margol Recruited by Curry G. Pajcic


SOARING - Yr1 Scott Christopher Adams Recruited by Fermin Lopez

Amanda R. Dunn Recruited by Cassidy Perdue

Michael Kalil Recruited by Cassidy Perdue

Patrick Stephen McArdle Recruited by Cassidy Perdue

Chelsea N. Bogdan Recruited by Cassidy Perdue

Amber Hall Recruited by Matthew K. Foster

N. Ryan LaBar Recruited by Fermin Lopez

Colin McMichen Recruited by Waylon Thompson

Michael J. Carmona Recruited by Ricardo M. Martinez-Cid

Jaeson W. Homola Recruited by Matthew K. Foster

Michael E. Levine Recruited by Ricardo M. Martinez-Cid

Scott Perry Recruited by Peter Hunt

BFE FOUNDER - $25,000

BFE PATRON - $5,000

Upgraded by Vanessa Brice

Index Arbitration voluntary, only review available is in circuit court unless constitutional issue raised…22, 46 waiver, pursuit of separate action on issue outside scope of arbitration clause…20 Attorneys fees, proposals for settlement, recent cases reflect continuing confusion...27 fees, contract, “success fee” based on a percentage “to be agreed upon” was unenforceable…20 Auto dangerous instrumentality doctrine, application of Florida law to collision in South Carolina involving two Florida cars…22 federal diversity jurisdiction, UM policy limits usually but not always dictate amount in controversy...28 Closing Argument, appeal of allegedly improper comments, discussion of necessity for objection...47 Construction Defects, statute of repose, closing does not conclusively establish that contract was completed on that date…22 Discovery attorney-client privilege, attorney’s referral of client to physician for treatment is protected communication…19, 24, 37 deposition of minor, evidence required to justify prohibiting...27 minor child who witnessed auto collision involving mother, protective order quashed where plaintiff provided no evidence as to how depo would harm to child...46 Dismissal, fraud on the court, clear and convincing evidence required...27 Evidence automobile “black box” data, reasonable expectation of privacy protected by 4th Amendment...38

Evidence hearsay, cell phone data extraction report not a “statement” so not hearsay vs. the extracted text messages which are a “statement”...38 hearsay, rule of completeness cannot be used as a backdoor for otherwise inadmissible exculpatory statements...38 hearsay, victim’s description of an assailant not a statement of “identification”...38 learned treatises, primer on admissibility and use...36 proof of mailing, party-specific evidence required rather than “normal course of business”...38 FJA Young Lawyers Section, Chair’s term-end review of the Section’s activities during 2016-17...54 FJA, incoming 2017-18 President Dale Swope, profile...10 FJA, legislative session, members urged to take leadership positions...8 Gustafson: FJA, outgoing president Gustafson, looking back on past year as president...5 Insurance, public records, quarterly reports filed with OIR are trade secrets exempt from disclosure…20 Judges Baker Act proceedings, judges are required to be physically present for hearings and may not hold hearings by videoconference…19 d i s c i p l i n e , k n ow i n g m i s re p re s e n t a t i o n i n c a m p a i g n advertisement…19 Juries, voir dire, practice tips for exposing intractable preconceived opinions...50 Jurisdiction, forum non conveniens, court finds motion by defendant who is resident of forum state both “puzzling and strange”...46 Jurors misconduct, discussion of issues and practice tips relating to juror concealment...40 www.FloridaJusticeAssociation.org | May/June 2017 | 61


Index Jurors (continued) misconduct, error to disallow post-trial interview where extensive legal history concealed…21 Legislation 2017 Regular Session, summary of significant legislation...14 2017 Session ends, 2018 Session dates…21 Medicaid Liens, satisfaction, bad faith portion of settlement available, portion of damages for future medical expense not available…19, 24 Medical Malpractice caps on non-economic damages, constitutionality...33 Medical Malpractice damages, reasonableness...33 foreign body presumption, presumption is mandatory regardless of whether direct evidence of negligence exists...38 pending federal legislation, discussion of negative impact on victims and attorneys who represent them...53 presuit notice, timeliness...33 statute of limitations...33 Premises Liability material issue of fact created by expert opinion, error for trial court to weigh evidence or address credibility of expert in granting summary judgement…20 trip and fall, summary judgment affirmed where plaintiff saw and walked around pallet on floor twice before tripping over it…21 tripping hazard in county roadway created by protruding water company valve, error to determine no duty to public as a matter of law…22 uninvited licensee or trespasser, duty to warn of concealed hazards only applies when owner knows entrant is on the property…22

Procedure dismissal for failure to prosecute, no time deadline when improper notice given...46 Procedure summary judgment, untimely opposing affidavit, lack of transcript prevented review of whether trial court abused discretion in entering judgment...46 technical admissions, relief from effect of failure to respond, transcript of proceedings in which motion for relief was made required...46 Products Liability dangerous toys, discussion of findings in CPSC annual report on toy-related deaths and injuries...34 medical devices, discussion of composite coated hernia mesh and litigation re same...30 tobacco, cases involve intentional misconduct so comparative negligence does not apply…21 tobacco, federal law does not preempt state law tort claims of strict liability and negligence by Engle progeny plaintiffs…19 Statute of Limitations, sexual abuse of minor child, statute of limitations triggered by date parents learns of abuse or child turns 18 …20 Statute, challenging constitutionality, governor was not a proper party defendant in challenge to 2014 amendments to nursing home statute…20 Swope: FJA, incoming president Swope, looking to the year ahead...6 Workers’ Compensation, rate determination process, NCCI’s internal process for arriving at rates to file is not subject to Sunshine Law and Public Records Act…22

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Law School/Education Stetson University College of Law................................................. 35 62 | May/June 2017 | www.FloridaJusticeAssociation.org

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

I AM EAGLE

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FJA EAGLE members contribute valuable resources that enable us to go head to head with the most powerful forces that stand in the way of justice...The FJA EAGLE program sends a message to those who would challenge the rights and liberties of our citizens Virginia Buchanan, Levin Papantonio

FJA EAGLE members support the delivery of member benefits and allow the FJA to provide value that far exceeds the annual dues paid. By supporting our legislative advocacy and political programs, your EAGLE commitment provides the tools and resources necessary to defend civil justice at the Capitol and promote lasting and meaningful reforms to protect injured victims, to preserve the safety of Florida’s consumers, and to ensure the continued success of your practices for years to come.

MAKE AN EAGLE PLEDGE TODAY! For more information on EAGLE benefits, pledge levels, or to download the pledge form go online to the FJA website, navigate to the About FJA tab and then click on EAGLE. FloridaJusticeAssociation.org

eagle@floridajusticeassociation.org EAGLE Department @ (850) 521-1096