FJA Journal - January February 2016

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Florida Justice Association • January/February 2016 • #588




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JANUARY/FEBRUARY 2016 - NO. 588 March 2014 March 2014


On the Cover:

Make room for the rising stars found among the FJA Young Lawyers’ Section — Millennial Lawyers are on the rise

pg 6


Still no decision on the constitutionality of Workers’ Comp


A primer on the Rule of Sequestration


Avoid testifying in your closing argument


Overview and analysis of recent changes to the Florida Rules of Appellate Procedure


The Supreme Court’s Committee on Diversity and Fairness has a long history of important works


Five ways for young lawyers to avoid being out-lawyered

IN THIS ISSUE Dupont’s hidden legacy of deadly worldwide contamination

International service under the Hague Convention just got easier

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pg 42

4 FJA Events Calendar 5 President’s Message — Todd Copeland 6 Special Focus: The Rise of the Millennial Lawyer — G.C. Murray, Jr. 8 Special Focus: Workhorse Seminar 10 Cases and Commentaries — Kenneth D. Kranz 14 Legislative Notes 18 Tips for Auto Practitioners — Dale Swope 22 Insurance — Richard M. Benrubi 28 MassTorts - Troy Rafferty and Christopher Paulos 34 Medical Malpractice — Scott R. McMillen and Allison McMillen 36 Workers’ Compensation — Michael J. Winer 38 Evidence — Matt Schultz 42 Civil Procedure – Roy D. Wasson 46 Closing Argument — Philip Burlington, Barbara Green, and Chris Carlyle 50 FJA Appellate Practice Section — Rebecca Bowen Creed 54 FJA Diversity Committee — Ricardo Martinez-Cid 56 FJA Young Lawyers Section — Elizabeth Munro 58 EAGLE Spotlight 63 Member Outreach 64 Index | January/February 2016 | 3



PRESIDENT-ELECT James W. Gustafson, Jr.

EXECUTIVE COMMITTEE Laurie Briggs Tiffany M. Faddis Leslie Mitchell Kroeger Christopher N. Ligori Eric Romano

TREASURER Dale M. Swope SECRETARY Lake H. (Trey) Lytal, III

MARCH - 2016 MARCH 18

Expert Webinar


30th Annual Workhorse Seminar Orlando Marriott World Center


DIRECTORS 2014-2016 Laurie Briggs Stephen F. Cain William M. Chanfrau, Jr. David C. Dismuke Kimberly A. Driggers Steven Jaffe Leslie Scott Jean-Bart Cameron M. Kennedy Leslie Mitchell Kroeger Christopher N. Ligori Eric Romano Steve Watrel

DIRECTORS AT LARGE P. Hutchison Brock Jarian N. Lyons James L. Magazine Brent C. Miller Joseph N. Nusbaum H. L. Larry Perry PRESIDENTIAL APPOINTMENTS Stephen G. Charpentier Scott R. McMillen AMICUS CURIAE COMMITTEE Phil Burlington APPELLATE PRACTICE SECTION Rebecca B. Creed WORKERS’ COMPENSATION SECTION Richard E. Chait YOUNG LAWYERS SECTION Vanessa Brice Jonathan Gilbert

LOCAL TLA REPRESENTATIVES Dana Brooks Michael J. Damaso, II James W. Guarnieri Matthew N. Posgay Gloria Seidule Bernard F. Walsh AAJ OFFICER Julie Braman Kane AAJ BOARD OF GOVERNORS Sean C. Domnick Brenda Fulmer Rodney G. Gregory James R. Holland Ricardo Martinez-Cid Herman J. Russomanno Aaron Watson Andrew Weinstein Jean Marie Whalen Edward H. Zebersky AAJ STATE DELEGATES Sean Shaw Clancey Bounds Daryl D. Parks

WOMEN’S CAUCUS Elizabeth Finizio Lindsay L. Tygart



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

APRIL - 2016


FJA Board of Directors Meeting


Expert Webinar


Annual Review: Legislative & Case Law Update Webinar

MAY - 2016 MAY 5

Collateral Sources Webinar

MAY 13

Case Law Insider

MAY 19-22

Trojan Horse Method Seminar Orlando

MAY 20

Expert Webinar

JUNE - 2016 JUNE 17

Expert Webinar

JUNE 22-25

FJA Annual Convention The Breakers Palm Beach


FJA Board of Directors Meeting The Breakers Palm Beach





here is an old truth in sports. You are only as good as your next draft. In other words, if you don’t have new, young blood coming up through the ranks, the life and vitality of your organization will be in jeopardy.

board. For those who do not know, the annual award was established to honor the lifelong accomplishments of Professor Mickey Smiley. The recipient of the prestigious Perry Nichols and the Al J. Cone Lifetime Achievement Awards, Mickey has dedicated his life to mentoring young trial lawyers and providing his expertise whenever Florida’s civil justice system was threatened.

Judging from the young lawyers I have met in the Florida Justice Association, our next draft looks great!

We all owe him a great debt of gratitude for his immeasurable contributions to training students in the practice of law and devoting intellect and talents to the civil justice system and I am humbled to have received an award named in his honor.

I’ve watched you in Tallahassee lobby and advocate for our shared mission with passion and dedication. I’ve watched you in your communities serve the most vulnerable and those in need. And I’ve seen you in the courtroom as you bring credit to our profession and seek justice for your clients. On a personal note, one of the singular honors of my life was winning the Mickey Smiley Award from the Young Lawyer

As always, I thank you for your service to victims in Florida, your friendship and commitment to our cause, and your Membership in this great organization we call the FJA! And I especially thank the young lawyers who will carry on the legacy of Mickey Smiley, and all who came after, to build a safer, and more just, Florida. Your future, and that of the Florida Justice Association, is truly a bright one. | January/February 2016 | 5





y now most people should know the Bureau of Labor Statistics has reported that Millennials occupy the largest portion of the American workforce. Most researchers define Millennials as the cohort which reached adulthood around the turn of the millennium. This means millennials are most familiar with the rise of Microsoft and Windows, dying of dysentery in the game Oregon Trail, the start of Wikipedia, and when you could not get a Facebook page without a college email address. Millennials grew up with technology as a matter of life and that has shaped the entire generation in ways which make Millennials quite different from other generations in the workforce.

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The advent of the digital technology age turned our current biggest generational workforce into an efficient, multitasking, and resourceful machine. Being digital natives allows Millennials access to credible sources of pertinent information in an instantaneous way which other generations may not be as familiar or comfortable with. Juxtapose that ability with a generation predisposed to value higher education as the main way to fiscal growth and you have a group which can retrieve information and has the intellectual fortitude to use that information—you have: the Millennial Lawyer. There are several preconceptions surrounding the Millennial Lawyer, the majority of which are negative. They are sometimes described as sensitive, entitled, and lazy. Some older lawyers perceive them as employees who have generally grown up protected from criticism, may not be loyal to the firm, and do not work as hard as others. Sometimes the result of these misconceptions is that those older lawyers are less primed to offer significant raises to the Millennial Lawyer, less likely to trust them with opportunities for growth, and unevenly and overly manage them. As a result of these misconceptions, some lawyers may effectively create a hostile attribution bias where his/her reactions to misconceptions cause the misconceptions to appear; for example, if a seasoned lawyer believes the Millennial Lawyer is disloyal and thus does not offer him/her a promotion then, the Millennial Lawyer will likely search for other job prospects. If the Millennial Lawyer leaves the firm, that action will be negatively rationalized to reconfirm the original false premise of disloyalty. These types of interactions occur, consciously and subconsciously, often between other generations and the Millennial Lawyer but can be actively neutralized through discussion and understanding. With an early adulthood covered in the ashes of the terrorist attacks on September 11th and obstructed by the crippling effects of the Great Recession, the Millennial Lawyer is anything but sensitive and entitled. The Millennial Lawyer grew up seeing lives unnecessarily taken and promises of the American dream unfulfilled. These two major life altering events have caused them to be more concerned with making a difference than making a living. Largely considered by scholars to be the most “civically-minded” generation, the Millennial Lawyer does not feel entitled to anything other than the pursuit of happiness. When you think about it, the majority of them gambled on themselves and accrued significant debt to pursue the dream of being a counselor of law. Often times they were hired during a time where job options were scarce and wages and entry pay were miniscule. The incentive to be an attorney had to be borne from within because there certainly was not job or fiscal security in this career path. Put another way, the thing that drove the Millennial Lawyer to becoming such was not fiscal prosperity, it was, and will always be, something more meaningful. Always faced with the growing likelihood of being out of work, the Millennial Lawyer, as a mechanism of self-preservation, developed a strong sense of entrepreneurialism; the type of industrial spirit that

could revolutionize a law firm. The Millennial Lawyer is far from being lazy; on the contrary, they often have a high motor and an even higher output. With the knowledge and ability to leverage technology to practice law in the most efficient way, the Millennial Lawyer could provide a huge positive impact to your firm if allowed to have an input. They thrive off of autonomy and do not need to be micromanaged but instead mentored. I would argue that because of those facts, the Millennial Lawyer thrives most when seasoned lawyers acknowledge their existence and personhood and notice their contributions to the work environment and, more importantly, to the work product. Every Millennial Lawyer seeks to work for a leader, not a boss. The impact of the Millennial Lawyer on FJA is, and will continue to be, substantial. You can look no further than Vanessa Brice, FJA’s Young Lawyers’ Section Chair who has brought new life to FJA’s largest and most outward facing event, the Hon. E. Earle Zehmer Memorial Mock Trial Competition. You can look right at Gordon Glover who, as President of the Florida Bar Young Lawyers Division Board of Governors has had a tremendous impact on shaping the future policies of the Florida Bar. In South Florida, you have a shining example of the brilliance of the Millennial Lawyer in Sue-Ann Robinson-Caddy, a powerhouse who balances being a wife, mother, solo practitioner, YLD Governor, and liaison for FJA. Or just look at the Millennial Lawyer in your own office. They will lobby at the Capitol, canvass for candidates, fundraise (a little), be active, be involved, and be present. They are brimming with tenacity, talent, and time. The shocking truth for Millennial and seasoned lawyers alike is that we are all probably a poor man’s version of our own self-perception. We’re not as good as we think we are and others are not as bad as we think either. The distinctions between the generations are differences but not detriments. When we view these differences as opportunities to advance our understanding then, and only then, can we fully unleash the potential of the Millennial Lawyer. I had the benefit of my parents, especially my dad, Hon. Gordon Murray, Sr., encouraging me and shaping my skills to be a lawyer. I know every Millennial Lawyer does not have that type of assistance but I know each of them need one. You could be the difference maker. You could be the bridge builder which helps a Millennial Lawyer connect with the ideals and passions of your generation. You could be the reason that they begin to shine bright so that together we can all move FJA FORWARD. G.C. Murray, Jr., FJA Deputy General Counsel

G.C. graduated from FSU Law and maintained a P.I. practice before joining the FJA. He currently serves as a Governor on the Florida Bar Young Lawyer Division. He also currently serves as the youngest President of the Tallahassee Barristers Association and the youngest member appointed to the FL Bar Code and Rules of Evidence Committee. He is also President of the ICE Foundation, a nonprofit he started focused on mentorship, service, and professional development. | January/February 2016 | 7



MARCH 29-APRIL 1, 2016



ORLANDO WORLD CENTER MARRIOTT For 30 years, John Romano has planned an intense Workhorse Seminar for FJA Members that now spans four days and has more than 100 speakers. The FJA Workhorse Seminar gives you all of the CLE Credit you need for three years! This year we have brought back some of your favorite out-of-state and in-state speakers plus a keynote speaker like never before — Abby Wambach, 2015 World Cup Champion and 2015 Time Magazine’s 100’s Most Influential People. Seminar themes this year were extremely well thought out by John and Eric Romano and the skills you will learn in the general sessions and breakout sessions will make you a better advocate for your client.

7:00am – 5:15pm Seminar Registration Open ®

7:30am – 10:00pm Seminar Hours

WEDNESDAY, MARCH 30, 2016 6:30am - 5:35pm Seminar Registration Open 7:00am – 10:00pm Seminar Hours


6:30am – 5:30pm Seminar Registration Hours 7:00am – 10:00pm Seminar Hours


6:30am – 4:15pm Seminar Registration Hours 7:00am – 4:15pm Seminar Hours 8:30am – Noon FJA Board of Directors Meeting

One of the world’s best players in the air, she is currently the #1 all-time leading scorer in international soccer history with 160 career goals. The USA’s emotional leader was her country’s leading scorer in the past two Women’s World Cup tournaments, and the 2004 and 2012 Olympics. (She missed Beijing 2008 due to a broken leg.) Her ability to wear down defenses with her physical play, aerial game and hard running has long been a key to the USA’s success. Abby is a true leader on and off the field, an ambassador for Right to Play and USAID among other organizations. She is the youngest of seven children and claims she got her “toughness” from her four older brothers. She loves coffee, cooking, music and the beach.

This is a special event sponsored and hosted by Counsel Financial, Buffalo, NY


12:30 PM – 1:30 PM • THURSDAY LUNCHEON 1:30 PM – 2:30 PM • MEET & GREET


8701 World Center Drive • Orlando, FL 32821-6358 FJA ROOM RATE: Deluxe Room at $209; Room rate available until March 9, 2016, or until the room block is full. Please call Marriott reservations at 1-888-789-3090. Enrich your stay with out-of-this-world services and stellar amenities at the Orlando World Center Marriott. The Orlando resort near Walt Disney World® has award-winning restaurants, a full-service spa and state-of-the-art fitness center. If you are bringing your family, enjoy the Falls Pool Oasis, featuring two 200-foot winding waterslides, a 90-foot speed slide, kid’s splash park and multiple pools. The resort has a variety of restaurants – Italian, American, a steakhouse, Japanese steakhouse, pool bar and grill, a food court, and Starbucks®. Most rooms and all suites offer spacious patios or oversized balconies. Enjoy the recently added nightly poolside laser show! Also, every Thursday through Saturday, the resort offers live poolside music. If you plan to stay over for the weekend, there is a Gatorland meet and greet plus snow cones on Saturdays.


In Brief



he Supreme Court certified to the legislature the need for 24 additional trial court judges. In Re: Certification of Need for Additional Judges, So.3d , 40 FLW S647 (Fla. 11-19-2015). The Court certified a need for one circuit judge in the Fifth Circuit and county court judges in Duval (1), Orange (1), Miami-Dade (7), Hillsborough (7), Palm Beach (2), Broward (4) and Lee (1) counties. The Court did not certify a need for any additional district court judges. Finding a county court judge to have engaged in “appalling behavior” that is “fundamentally inconsistent with the responsibilities of judicial office,” the Supreme Court rejected the JQC’s recommendation that the judge be reprimanded, suspended, fined, and required to participate in therapy and educational programs and instead ordered the judge removed from office. Inquiry Concerning a Judge, No. 14-255 Re: John C. Murphy, So.3d , 40 FLW S711 (Fla. 12-17-2015). “Judge Murphy’s misconduct includes the following: (1) threatening to commit violence against an assistant public defender; (2) engaging in a physical altercation with counsel; and (3) resuming his docket while defendants were without counsel. This egregious conduct demonstrates his present unfitness to remain in office. Furthermore, where a judge’s actions erode public faith in the courts, removal is appropriate. Judge Murphy’s grievous misconduct became a national spectacle and an embarrassment to Florida’s judicial system. We conclude that, through his misconduct, Judge Murphy surrendered his privilege to serve in our court system.” Fourth District again holds that the litigation privilege does not bar a cause of action for malicious prosecution where all the elements of malicious prosecution are present and again certifies conflict with Wolfe v. Foreman, 128 So.3d 67 (Fla. 3rd DCA 2013). Edwards v. Epstein, So.3d , 40 FLW D2550 (Fla. 4th DCA 11-12-2015). Where a statute provided for an award of prevailing party attorney’s fees in an action seeking injunctive relief, that necessarily included entitlement to prevailing party fees for contempt proceedings

seeking to enforce the injunction. Environ Towers I Condominium Assoc., Inc. v. Hokenstrom, So.3d , 40 FLW D2586 (Fla. 4th DCA 11-18-2015). The statute in question was §718.303, Fla. Stat., which deals with the obligations of owners and occupants of condominiums; subsection (1) provides for actions for injunctive relief and/or damages and the award of prevailing party fees. The court pointed out that when used to enforce compliance with an injunction, a civil contempt action arises from different facts than those that gave rise to the original final decree, so it is separate and distinct from the proceedings giving rise to the injunction and the statute permits, as was the case here, the award of fees to the different prevailing parties in the injunction action and the contempt action. Because a bank had no special relationship with its client who committed suicide after the bank denied his application for a loan, the bank had no duty to the client and it did not and could not undertake to protect the client from any self-inflicted injury. Surloff v. Regions Bank, So.3d , 40 FLW D2598 (Fla. 4th DCA 11-182015). According to the complaint, the decedent suffered from physical and mental impairments that resulted in him being unable to process complex information, he had anxiety related to financial information, and he had an inability to deal with complex information, especially negative financial information. His family accompanied him to the bank and specifically requested that the bank not contact the decedent, except with regard to ministerial or document requests. The bank agreed to the family’s terms and reaffirmed over the course of the loan process their commitment not to contact the decedent. Subsequently, the decedent received a letter by mistake informing him the loan had been denied. This upset the decedent, and the family again told the bank not to communicate with the decedent about the loan. Representatives from the bank even met with the decedent’s doctor, who informed them that the decedent was in a fragile condition due to a permanent disability and could cause mental and physical harm to himself. Despite being told not to do so, a bank employee continued to speak with the decedent. A bank VP reminded the employee not to do so, but

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COhen Milstein COngratulates

leslie M. Kroeger 2015 Champion of Consumer safety award reCipient In recognition of strong leadership, determined advocacy and steadfast commitment to the Protection of Children and Consumers on Florida’s Roadways.

The firm is proud to congratulate Partner and Award Recipient Leslie M. Kroeger, a tireless champion for Child Safety and Consumer Protection.

aCCess tO JustiCe 877.515.7955 | Palm Beach Gardens, FL | Washington, DC | New York, NY | Philadelphia, PA | Chicago, IL | Denver, CO Antitrust | Civil Rights and Employment | Consumer Class Action and Product Liability | Human Rights Whistleblower/False Claims Act | Securities Fraud/Investor Protection | Commercial Litigation | Managed Care Abuse Catastrophic Injury | Employee Benefits | Ethics and Fiduciary Counseling | Public Client | January/February 2016 | 11

CASES&COMMENTARIES two days later the employee told the decedent that his loan had been denied. Two days later the decedent took an overdose of medications and died three days later. A wrongful death action was brought based on theories of negligent undertaking and negligent infliction of emotional distress. Plaintiff argued that the bank voluntarily agreed to handle the loan without contacting the decedent and that it knew or should have known that communicating with him and directly informing him that the loan was denied would severely emotionally traumatize and distress him. When the bank breached this duty by communicating with the decedent, it caused distress which eventually led to the decedent’s death. The trial court dismissed the complaint and the Fourth DCA affirmed. The court noted that generally no liability exists for another’s suicide in the absence of a specific duty of care, which can be assumed by a party who is in a position to control the risk and who takes custody and control over another. Here, although the bank allegedly knew of the decedent’s mental state and agreed to withhold complex financial information from him, it could not undertake a duty to prevent the decedent’s suicide because he was not in the bank’s “custody or control.” Thus the bank had no ability or responsibility to protect the decedent from committing suicide. Federal admiralty jurisdiction was found to exist where a cruise line passenger alleged that, as a result of the negligence of the cruise line, she was injured after exiting the ship and while walking in a restricted area of the cruise ship terminal on her way to the United States Customs station. Newell v. Carnival Cruise Lines, So.3d , 40 FLW D2600 (Fla. 3rd DCA 11-18-2015). The ticket for the cruise contained a forum selection clause requiring that claims arising under the ticket contract, including those related to travel to and from the vessel, be filed in federal court if it had subject matter jurisdiction; otherwise they could be filed in state court. A claim was filed by the plaintiff in state court and was subsequently dismissed. On appeal, the Third DCA noted: “the U.S. Supreme Court has held that admiralty jurisdiction will be present in tort cases when two tests are satisfied: (1) the location test, which requires either that an injury occur on navigable waters or that the injury was ‘caused by a vessel on navigable water;’ and (2) the connectivity test, which requires both that the incident had a ‘potentially disruptive impact on maritime commerce’ and that ‘the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.’” The court found the connectivity test had been satisfied where the plaintiff alleged in the complaint that she sustained injuries while walking along a pathway in the cruise ship terminal on her way to Customs and that her alleged injuries were caused by the defendant’s failure to provide a safe walkway. It found that the location test had also been satisfied because the injuries occurred during the unloading or disembarking process. Thus federal admiralty jurisdiction was present and, per the forum selection clause, the case should have been filed in federal court. Equitable tolling of the statute of limitations is available to protect a plaintiff who is unaware of his or her injury; it is not available to a plaintiff who is aware of the injury and the cause, but is not aware that a cause of action exists. Lupola v. Lupola, So.3d , 40 FLW D2614 (Fla. 1st DCA 11-23-2015). Plaintiff and her then-husband were riding on a two-person raft being pulled by a boat operated on a public waterway by her then-father-in-law. At one point, the raft became airborne and returned to the surface with enough force to eject both of them, causing injury to both. Just under four years later,

the plaintiff filed a negligence action against her former father-in-law and a products liability action against the manufacturer of the raft. In response to a motion for summary judgment, the plaintiff conceded the incident occurred on navigable waters and was thus subject to the three-year federal maritime law statute of limitations but also argued that equitable tolling applied, the basis for which she alleged was a marital relationship that was controlled by her husband who instructed her not to discuss the accident or her injuries with anyone else, which she understood to mean not to seek legal counsel. As a result, she said, but for her husband’s domineering control over her she would have gained the knowledge necessary to determine the existence of possible claims, learned about statutes of limitations, and “learn[ed] through a personal injury attorney the nuances of negligence products liability and causation factors.” The trial court found that tolling was not available because there was no evidence that the husband entered into any type of agreement with the defendants. The First DCA found this to have been error, as such misconduct is not required for equitable tolling to apply, but pursuant to the “tipsy-coachman” doctrine it affirmed the summary judgment on other grounds. “Supreme Court precedent has made it clear that ‘discovery of the injury and its cause—and not the realization that a cause of action exists—marks the date the limitations period starts running.’ ...There is no dispute that [plaintiff] was aware that she was injured on the day of the accident and that the accident caused it. … [T]he fact that [plaintiff] may not have been aware that the accident and her injuries might be grounds for negligence and product liability claims had no bearing on when the statute of limitations commenced. … [H]er alleged ignorance of her legal rights could not act to delay accrual of the statute of limitations.” Counsel’s significant involvement in a trial judge’s ongoing election campaign is a legally sufficient basis to require disqualification. Rivera v. Bosque, So.3d , 40 FLW D2647 (Fla. 5th DCA 11-2415). Here, the plaintiff in a personal injury case was represented by two attorneys from the same firm. One of them was simply listed as one of many attorneys who supported the judge’s reelection. However, the other had a more significant role in the campaign: he was a member of the judge’s reelection campaign committee; he was a member of the host committee for a reception in support of the judge’s reelection; he attended a fund raiser; he was listed as a supporter of the judge’s reelection; and he made a financial contribution to the judge’s reelection campaign. The judge denied defendant’s motion to disqualify, and the defendant sought a writ of prohibition, which the Fifth DCA granted. “Florida law is clear that involvement of a relatively limited nature in a judge’s prior campaign, i.e., neither ongoing nor recently concluded, is not grounds for disqualification. … On the other hand, counsel’s significant involvement in a current, ongoing, or recently concluded reelection campaign constitutes sufficient legal ground for granting a motion to disqualify.” While the court did not question the judge’s impartiality and expressed confidence that the petitioner would receive a fair trial, it held that: “[B]ecause the focus is on the Petitioner’s fear that he will not receive a fair trial, we find the motion [to disqualify] is legally sufficient to the extent it relies upon these specific campaignrelated issues.” Bare allegations of negligence in deposition testimony by the parents of a man who had been killed after being hit by a truck while he was trying to cross a multi-lane interstate highway on foot were purely speculative lay testimony that was not admissible

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evidence and could not be relied upon to create a material issue of fact to defeat a motion for summary judgment. Panzera v. O’Neal, So.3d , 40 FLW D2661 (Fla. 2nd DCA 12-2-2015). The undisputed facts were that at around 3 a.m. the decedent, who was wearing a dark shirt, walked to I-75, climbed a fence and entered an unlit area of the interstate where he was struck by defendant’s semi tractor-trailer. The Highway Patrol report documented observations consistent with the driver’s testimony that he braked hard and took evasive action. The court noted: “The only evidence adduced prior to the summary judgment hearing showed that [the driver] was traveling below the speed limit in the right lane, that he applied the brakes as he saw [the decedent] running into the road, and that he steered to the left to avoid [the decedent], who entered the highway from the right shoulder.” The estate relied solely on the deposition testimony of the decedent’s parents, who surmised that the driver could have avoided the accident had he taken additional evasive maneuvers and that therefore he must not have been able to see the decedent before the collision. These conclusions were based on their personal review of the scene after the accident—the court noted that they were not present at the time of the accident and had no experience in accident reconstruction. The court found the evidence supported the defendants’ arguments that the decedent was the sole proximate cause of the accident and that there was no admissible evidence to support a finding that the driver was negligent in his efforts to avoid the collision. In a negligence action the trial court erred in awarding costs for “real-time” court reporting, overhead expenses, and expert witness fees. The Field Club, Inc. v. Alario, So.3d , 40 FLW D2734 (Fla. FJAJournal-7.5x4.75-4C.qxp 6/16/15 5:15 PM Page 1 2nd DCA 12-9-2015). The appellate court struck that portion of the

court reporter fees that were for “real-time” reporting during voir dire because there were no findings to show that the costs were reasonably necessary under the unique circumstances of the case. The court explained that “real-time” court reporting “utilizes a computer program to translate the stenography instantaneously and display readable text on a computer screen as the events unfold—akin to closed captioning on a television.” The “overhead expenses” that were stricken as not provided for in the Guidelines for the Taxation of Costs included “miscellaneous taxable costs” such as online investigations, preparation of Freedom of Information Act requests, background checks, overnight shipping costs and the production of a DVD that was not used at trial. As to the expert witness costs, the court explained that where a party specifically objects to setting an expert witness fee without the presentation of evidence, an evidentiary hearing must be held at which the prevailing party must present testimony on the reasonableness and necessity of the fee. Here, defendant objected, which triggered the need for a hearing, which the trial court held. However, the plaintiff failed to present any competent testimony that the expert fees were reasonable and necessary. Instead of presenting any testimony from expert witnesses qualified in the relevant fields, they relied on their trial attorney’s affidavit that all of the requested costs were reasonable and related to the case against the defendant. Thus, the court held, the fees must be stricken. Where the record showed that the issue of whether former counsel was entitled to a charging and retaining lien turned on several factual issues, the trial court erred granting a motion to strike by making factual determinations based only on the record before it and addressing the merits of the claim of entitlement to a lien as

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561-371-7570 | January/February 2016 | 13

CASES&COMMENTARIES well as affirmative defenses on the merits without giving the parties an opportunity to present evidence. Parrish & Yarnell, P.A. v. Spruce River Ventures, LLC, So.3d , 40 FLW D2746 (Fla. 2nd DCA 1211-2015). The court noted that this was inappropriate on a motion to strike where the only issue should have been the legal sufficiency of the claim to the lien. In a wrongful death action alleging negligence on the part of a tugboat captain and alternatively that a Coast Guard regulation was violated, the trial court erred in answering a question submitted by a juror as to whether the investigating officer or any other law enforcement officer wrote a ticket to the captain or owner of the vessel citing the law that was broken. Soto v. McCulley Marine Services, Inc., So.3d , 40 FLW D2770 (Fla. 2nd DCA 12-16-2015). The tug and barge were involved in a project for Manatee County building artificial reefs and were moored in Longboat Pass during a Fourth of July holiday weekend. The decedent was operating his jet-ski near the barge and tugboat when it stalled. He was unable to restart the jet-ski and at some point he became separated from it. He was sucked by the current under the defendant’s moored barge and drowned, despite the fact that he was wearing a life jacket. The plaintiff alleged that the death was caused by the negligence of the defendants in mooring the barge in such a configuration that it increased the speed and force of already strong tidal currents in the pass, creating a hidden danger for any jet skier who might enter the water. It further alleged that the captain of the tug knew or should have known that the barge and tug were moored in an area where jet-skis would be used extensively over the holiday weekend by relatively inexperienced operators, and that they should have moored the vessels elsewhere for the weekend or provided warnings for jet-skiers to keep a safe distance. Plaintiffs alternatively argued that the captain had negligently obstructed the waterway and contributed to the death because it violated a U.S. Coast Guard regulation when he moored there. During the plaintiff’s case in chief, one of the jurors submitted a question to the judge as to whether the captain or company had been cited for violating the

law. The plaintiffs objected, but the defendants claimed the plaintiffs had opened the door to this evidence by attempting to prove that the defendants had violated the regulation. The trial court agreed with the defendants and informed the jury that the answer to the question was “no.” Plaintiffs moved for a mistrial, which was denied. In closing, the defendants emphasized the court’s statement that the captain was not cited, and the jury returned a verdict for the defendants. On appeal, the Second DCA noted that it is now very well established that evidence of a citation or lack thereof is inadmissible at trial, and it rejected the trial court’s conclusion that the plaintiffs opened the door to this otherwise inadmissible evidence. “Arguing that a defendant violated a provision of law that is relevant to the determination of negligence simply does not open the door to admitting a law enforcement officer’s decision on whether to issue a citation for that violation. Such evidence is particularly prejudicial when it comes from the trial court itself, as it did here.” The court concluded that the error required a new trial. Article 10(a) of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters permits service of process by mail. Portalp International SAS, v. Zuloaga, So.3d , 40 FLW D2791 (Fla. 2nd DCA 1218-2015). The defendant appealed the trial court’s order denying its motion to quash service of process asserting that the plaintiff’s attempt to serve it in France via Federal Express was invalid under the Hague Convention, arguing that article 10(a) only permits the mailing of judicial documents after process has been served. The court noted that this is an issue of first impression in Florida and that, while there is a split of authority among several federal courts, the issue has not been addressed by either the U.S. Supreme Court or the Eleventh Circuit. After an extensive discussion of article 10(a) of the Hague Convention, the court concluded that it permits service of process by mail. Section 284.30, Fla. Stat., which requires service on the Department of Financial Services of a copy of any pleading claiming entitlement to an award of attorney’s fees against the state or any of its agencies, is applicable to a claim of fees based on a public records request


As this is being written we are one week into the 2016 Regular Session, and, as usual, things are happening at an already frantic pace that will continue to accelerate over the following eight weeks.The usual actors and issues are in play, and the FJA is as always fully engaged fighting on many fronts to protect the rights of consumers and those injured by the negligence of others. At this point in the Session things happen so quickly that it would be pointless to provide a status report as it would be ancient history by next week, much less by the time you receive this issue, so, keep an eye out for timely emailed updates from the FJA and check the FJA website. If you wish to dig even deeper, visit www. or for detailed information, copies of bills, amendments and summaries, and live and archived recordings of committee and floor proceedings.

This year the Regular Session is scheduled to run through March 11... if they end on time. Given that this is an election year and they do not want a repeat of the embarrassing scenario that played out at the end of the 2015 Session, legislators are likely going to do their best to wrap up their business and end on time without the need for extra innings. Regardless of how it all turns out, the March/April Journal will contain a comprehensive post-Session wrap-up of the 2016 legislation that could impact your practice. 2015 Session Dates: January 12-March 11, 2016.

14 | January/February 2016 |

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CASES&COMMENTARIES pursuant to Ch. 119, Fla. Stat. State of Fla., Dept. of Economic Opportunity v. Consumer Rights, LLC, So.3d , 40 FLW D2809 (Fla. 1st DCA 12-18-2015). The court noted that “giving the notice required by section 284.30 is a condition precedent to the recovery of attorney’s fees against the state.” In an administrative action to determine the amount of reimbursement of a Medicaid lien from a personal injury settlement, the ALJ erred by including in the total allocation for medical expenses the amount attributable to a self-funded ERISA plan’s lien. Mobley v. State, So.3d , 40 FLW D2816 (Fla. 1st DCA 12-18-2015). Section 409.910, Fla. Stat., provides that if a Medicaid beneficiary receives a settlement from a liable third party, Medicaid must be paid in full and prior to any other person, program or entity; and the state is barred from asserting a Medicaid lien on the portions of a settlement that are not allocated to medical expenses. Here, in determining the claims against the settlement the ALJ added together the reduced amounts allocated to the Medicaid lien and the ERISA plan, which together totaled more than the original Medicaid lien, thus entitling Medicaid to recover 100% of its lien. On appeal, the court found that this conclusion was not supported by competent substantial evidence: “Unlike Medicaid liens, ERISA liens can be paid from any portion of the settlement. … As such, the ERISA settlement amount did not provide evidence of allocation of medical expenses.” The court reversed and remanded with instructions to the trial court make a new determination without considering the ERISA settlement as part of the medical expense. In an action against Citizens Property Insurance Corporation to collect insurance proceeds for a first-party property damage claim, the trial court properly awarded an attorney’s fee multiplier of 1.5 to the plaintiff. Citizens Property Ins. Corp. v. Pulloquinga, So.3d , 41 FLW D30 (Fla 3rd DCA 12-30-2015). The plaintiff had a homeowner’s policy with Citizens when her home and personal possessions were totally destroyed by fire. She immediately reported this to Citizens, which initially provided $5,000, but made no other payments, forcing plaintiff to file the action to obtain payment under her policy. For the two years between the date of the fire and the trial date the plaintiff was required to maintain payment on her mortgage as well as provide for alternative housing, which put her in a dire financial situation. The ensuing litigation was highly contentious--Citizens accused the plaintiff of arson, insurance fraud, and material misrepresentation in the application, threatened §57.105 sanctions, and claimed there was no coverage for the loss. Citizens also contested not only whether the house was a total loss, but the plaintiff’s ownership interest in the house and whether it was actually her homestead, and it argued that she ran a business out of the home. Twenty-seven depositions were taken from Jacksonville to Key West, and multiple hearings were held, including four summary judgment motion hearings (summary judgment was eventually entered in plaintiff’s favor on all of Citizens’ defenses). The case was scheduled for trial twice, and on the eve of the rescheduled trial Citizens capitulated and agreed to pay the full policy limits as well as plaintiff’s attorney’s fees and costs. After some stalling on Citizens’ part the policy limits were paid, and the parties then participated in additional hearings to determine the amount of fees and costs. The trial court eventually entered a 12-page final judgment on fees and costs granting a 1.5 multiplier. Among other things, in addressing the criteria required by Rowe and Quanstrom, the trial court noted the

positions taken by Citizens required “significant high quality time, labor and effort” by counsel, who obtained an excellent result of full policy limits. It also noted that the difficulty and complexity of the positions taken by Citizens precluded counsel from working on other cases and interfered with procuring new business. As to the trial court’s analysis of the Quanstrom criterion relating to whether the market required a contingency fee to obtain competent counsel, “the trial court found, based on testimony, that there was no other counsel in the relevant market who would agree to represent [the plaintiff] under the fee arrangement she needed in light of her financial situation. The evidence showed that [the plaintiff] interviewed seven attorneys who would have accepted her case under an up-front fee arrangement and a few others who would have accepted the case if she had been willing to agree to a partial settlement. However, she was not financially able to pay an up-front fee and could not agree to allow a partial settlement due to the amount remaining on her mortgage. In other words, she was forced into an all or nothing proposition with regard to recovery on her policy and required counsel who would agree to pursue that position.” In sum, “the trial court heard direct evidence that there were no other attorneys were were willing to accept the plaintiff’s case who were willing to take it on a contingency basis and to try it to final judgment. We conclude that the finding in favor of the multiplier on that basis is thus supported by competent substantial evidence….” The “joint defendant” exception to the home venue privilege that is available to the state and its agencies and subdivisions does not apply in a situation where a Sheriff is sued in his official capacity alleging vicarious liability for the wrongful act of a deputy. Hunter v. Shaw, So.3d , 41 FLW D43 (Fla. 1st DCA 12-31-2015). The home venue privilege provides that an action brought against the state or one of its agencies or subdivisions properly lies in the county where the entity maintains it principal headquarters. There are four recognized exceptions: statutory waiver of the privilege; actions in which the state entity allegedly acts as a “sword wielder;” “joint tortfeasor;” and “good cause” petitions to access otherwise confidential records. Here, the trial court erroneously concluded that the allegedly vicariously liable Sheriff was a joint tortfeasor within the meaning of that exception. The First DCA pointed out that under the doctrine of respondeat superior, master and servant are not considered joint tortfeasors, and it held that the trial court interpreted the exception to the privilege too broadly by in effect improperly creating a new “co-defendant” exception. In ruling on a motion to disqualify, a judge may not make any effort to refute the charges of bias, prejudice or partiality, but the judge is permitted to explain the status of the record, including factual statements of what took place during the proceeding in question. Pilkington v. Pilkington, So.3d , 41 FLW D66 (Fla. 5th DCA 12-31-2015).

16 | January/February 2016 |

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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t is a testament to our judicial system and our judges how often the courts get to the right answer. They are, at any time, working on many different types of cases in disparate fields, maybe addressing issues that even the experts in those fields disagree about, and it is amazing how well the system works. Even more amazing are our Federal Circuit Courts, who are working with federal criminal and all types of federal civil cases, and then on top of that the separate law of several states on Erie cases that come before them. It should therefore come as no surprise that there are times when it all breaks down, and an opinion gets written that people who work in the affected field just stare at, slack jawed, aghast that such a large miss has occurred. See, e.g., Kropilak v. 21st Cent. Ins. Co., 806 F.3d 1062 (11th Cir. 2015). First, a little background. Everybody knows that in Florida, liability insurers owe a duty of good faith to their insureds, and are obligated to settle claims against their insureds if given the opportunity to do so. Moreover, insurers are not just required to enter the simple, “give me a release and I will give you some money” type transactions. If the best settlement possible is one that leaves the insureds exposed to liability, the carrier still has to accept it, using its expertise and experience to the insureds benefit in order to “blot out the most liability possible” for the insured. Liberty Mut. Ins. Co. v. Davis, 412 F.2d 475 (5th Cir. 1969). This notion is repeated in the Powell presumption that when an insurer fails to initiate settlement discussions, it is presumed that the case could have settled within the amount of the policy limits, or so close that the insured could have contributed the surplus necessary to close the gap. Powell v. Prudential Prop. & Cas. Ins. Co., 584 So. 2d 12 (Fla. 3d DCA 1991). It also is a fundamental, foundational concept of Florida law that if the insurer can protect its insured with a protective agreement, whereby the

insured has a judgment entered against him for a reasonable amount, but then obtains a release in exchange for an assignment, it is a nonnegotiable absolute obligation for the insurer to tell the insured about the offer, in order to allow the insured to accept. This requirement has been around since at least 1974 when Campbell v GEICO was decided. 306 So. 2d 525 (Fla. 1974). In that case, an excess judgment had already been entered against the insured and was on appeal. The claimant offered to give the insured a release if he would drop his appeal and assign his claims against GEICO. Even 40 years ago, GEICO was GEICO, so they never even told the insured about this offer, and in fact told him that the lowest offer they received would have required thousands of dollars from the insured to accept. The Supreme Court not only held this to be bad faith, but it was so outraged that GEICO had squelched this fabulous opportunity for its insured that it permitted the plaintiff to pursue punitive damages against GEICO. That might actually be the only time punitives have specifically been approved in a third-party bad faith case in Florida, which gives you a sense of how strongly this duty is embedded into Florida law. In Kropilak the injured plaintiffs had it in their head that the insurer had acted in bad faith, which of course the insurer denied. Just like Campbell. In Kropilak, everybody involved seemed to acknowledge that the plaintiff’s case was worth more than the policy limits that had been tendered, and in fact it was worth more than $150,000. The insurers own attorneys and adjusters even confirmed this.

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The plaintiff offered to avoid trial and take a judgment for the indisputably reasonable amount of $150,000, take an assignment of the claim and give the insured a release. Just like Campbell! It did not take a crystal ball to predict that if this offer was not accepted, the premium paying customer was going to end up with a judgment against him that would impair his finances for the next 20 years, and that 21st Century was going to be sued for bad faith either by the plaintiff, their insured, or both, so there could be absolutely no prejudice to the carrier from entering this agreement. Just like Campbell!!! And just like in Campbell, the insurer killed the deal. It put its own interest ahead of its insureds, and used the insured, essentially, as a human shield, hoping to bully its way into a better outcome for itself. This is textbook bad faith. This is the rare kind of case where the court would be expected to unleash its outrage, authorize punitive damages, and lecture insurance companies everywhere about the continuing obligations it owes to the people whose premiums pay their salaries that continue after the policy limits are tendered. That didn’t happen, and instead the court somehow concluded that this was a “Cunningham” offer which the insurer had no duty to accept in light of the footnote in Berges v. Infinity Ins. Co., 896 So. 2d 665 (Fla. 2004). Obviously the court is not a subscriber to the FJA Journal (See, The Offer No Insurance Company Can Refuse (or they’ll wish they hadn’t!!), FJA Journal September/October 2015 #584), but more discouraging, it clearly seems to never have read the actual Cunningham agreement itself that by its definition did not involve any assignment of a bad faith claim. It is always worth repeating that Federal Courts do not make law in diversity cases. Only the Florida state courts can do that, so on this issue the Supreme Court’s opinion in Campbell vs. GEICO and subsequent cases is still the law, and has not somehow been “reversed” by this federal decision. Hopefully someone can explain that to Mr. Kropilak as he learns what it actually means to live the next 20 years with an excess judgment against him that his insurer could have avoided. Score One for the Visitors Federal courts have a tradition of having visiting judges from other parts of the country participate in appellate decisions. This is an interesting concept since the visiting judge is charged with investigating and applying the law of a state they may have never studied before. In what must be an exciting academic exercise, they just take a completely fresh look at the state law cases, apply them to the facts before them, and write an opinion consistent with that. A judge from the 6th Circuit did that in a case involving Florida bad faith law, and the result was refreshing. Moore v. GEICO Gen. Ins. Co., No. 8:13-cv-01569-SCB-AEP, 2016 WL 123831 (11th Cir. Jan. 12, 2016) was an Erie case that actually applied Florida law, rather than attempt to create some sort of hybrid federal common law favoring insurers the way so many cases from our Circuit Court do.

The case was an obvious excess loss worth millions of dollars more than GEICO’s policy. The carrier commendably rushed its check over with a broad form release. The plaintiff promptly responded, offering to accept the limits so long as GEICO would alter their release in specific, reasonable ways, and provide a straightforward affidavit from the insured to assist the plaintiff in conducting its own due diligence compliance. GEICO dropped that ball grotesquely. The case therefore did not settle, and a multimillion dollar verdict was rendered against the insured. When the insured found out what had happened pre-suit, he lawyered up and filed suit, with justifiable outrage that his insurance company had failed him so badly by not taking advantage of the exceptional pre-suit opportunity to redeem him from financial disaster. The trial court granted the insurer’s summary judgment, focusing on the claimant’s motivations and unfair use of his Jedi powers and voodoo ways to induce the insurer to act sloppily in order to “manufacture” a bad faith claim. Even that court conceded that GEICO’s conduct “bordered on negligence,” but decided it didn’t matter since the plaintiff’s attorney could have forgiven the failures if he had really, really, really wanted to settle. Since the plaintiff’s lawyer didn’t forgive the failures, the trial court determined the insured should just go home and suffer quietly with his negative $ 4 million net worth. The visiting judge read Berges, read Boston Old Colony, read Macola, read Campbell and read LaForet, and determined this summary judgment order clearly had to be reversed. GEICO and all insurers have a duty to act “with due regard for the interests of their Insureds” and to manage the claims against their insured with “the same degree of care and diligence” that GEICO would have used in managing its own business had it had the opportunity to settle a $4 million case against GEICO for a tiny fraction of that amount. The focus in a bad faith case should not be on the actions of the claimant, but rather on those of the insurer in fulfilling its obligations to the insured, but the district had done the exact opposite, focusing on the plaintiff’s actions instead of GEICO’s and therefore the case was sent back down for trial. Sadly, the court determined not to “publish” the decision, meaning it is not binding in other cases, but its irrefutable logic shows what should happen in any of these cases if the Federal Courts actually apply Florida’s law instead of their own attempt at a federal common law of bad faith. Good Faith and Pure Motives are Irrelevant to Application of the Mirror Image Rule The exact same offer that was involved in the Moore case was sent in the case of Pena v. Fox, So.3d , WL 7074652 (Fla. 2d DCA Nov. 13, 2015). A key element of the offer, of course, was that the “standard” release needed to be modified as to not release any parties other than the insured, and that any failure to comply would constitute a rejection and counter offer. USAA purported to accept the offer, but sent a release that included the “insured as well as his heirs executors and assigns” and also his “agents and employees.” | January/February 2016 | 19

TIPSFORAUTOPRACTITIONERS The trial court felt this was not intended to be a counter offer and there was no “nefarious intent” to include USAA as a party to be released by including this language. On appeal, the court mentioned and reaffirmed all the regular cases like Ribich, Apicella, Peraza, (but curiously not Nichols vs Hartford which is probably most directly on point), reasoning that the term “agents and employees” in the release must have been intended to have some purpose, which made it a new term, therefore a counteroffer and rejection of the plaintiff’s offer. Ribich v. Evergreen Sales & Serv., Inc., 784 So.2d 1201 (Fla. 2d DCA 2001); Trout v. Apicella, 78 So.3d 681 (Fla. 5th DCA 2012); Peraza v. Robles, 983 So.2d 1189, 1189 (Fla. 3d DCA 2008); Nichols v. Hartford 834 So.2d 217 (Fla. 1st DCA 2002). The defendant did not argue that this fit within the “usual settlement documents” of the Peraza case, and it would have been “a far stretch” to try to treat this term as implicit in the transaction between the parties. The court seemed to go out of its way to emphasize that just because the carrier’s response was not an acceptance, it also appeared not to have constituted insurance bad faith, saying that it was “not the product of nefarious motives by the carrier.” Trial Courts that Add or Remit Have a Lot of ‘Splainin’ To Do Orders granting additur or remittitur require specific findings related to statutory findings. An order that does not include those findings will be reversed. Ferrer v. Serna, So.3d , 2015 WL 7566488 (Fla. 4th DCA 11-25-15). Plodding the Soggy Bog Between the Proposal For Settlement Rule and Statute The First DCA just upheld Borden Dairy and Diamond Aircraft, and again certified a conflict with Bennett, in a case called Colvin v. Clements and Ashmore, P.A., So.3d , 2016 WL 167010 (Fla. 1st DCA 1-1516). Borden Dairy Co. of Alabama, LLC v. Kuhajda, 171 So.3d 242 (Fla. 1st DCA 2015); Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362 (Fla. 2013); Bennett v. American Learning Systems of Boca Delray, Inc., 857 So.2d 986 (Fla. 4th DCA 2003). The issue is whether a proposal for settlement is invalid if it fails to state “whether the proposal includes a claim for attorneys’ fees” in cases where no fee claim has been pled and could not be pled under the law. The trial court recognized the absurdity of this requirement in the rule (that is NOT in the statue) but felt compelled to follow the law of the First DCA as expressed in Borden Dairy, as did the appellate court. The concurrence sought nobly to explain why this requirement really was not all that absurd. Its thesis was that a proposal for settlement could include claims that are not pled, and that could also perhaps include a claim of fees, and offerees should be given a fair opportunity to understand that, one way or the other. It rests on the principle that an offer to settle might include claims that are not awardable in a final judgment. Because of this, people who receive an offer might want to know whether it will settle an un-pled claim of fees, or possibly even something completely unrelated to the pending lawsuit.

That explanation/apologia for the absurd rule threatens to confuse matters even worse – if it is possible to do so. Obviously, negotiations for settlement are a wide open field where creativity is invited. A party can make any offer it wants, and the scope of settlement offers generally are in no way bound by the pleadings. But a statutory proposal for settlement certainly is. A proposal for settlement cannot be treated like a normal freeform negotiation instrument because unlike other offers, it carries the threat of monetary sanctions against the offeree who does not accept it. Entitlement to that sanction is determined by the judgment obtained in the pending litigation. The proposal therefore has to be informed by the pleadings because the sanctions for non-acceptance are measured by the judgment, which is certainly controlled by the pleadings. Imagine a hypothetical proposal as follows: – I will offer to take $5,000 to settle this $100,000 claim I have against you, but only if you sign this settlement document that also releases the unrelated $2 million claim you have against me. If that offer were rejected (and it should be), and the offeror would presumably get a judgment for 125 percent of the offer in the pending litigation. Does that mean they should get fees as a sanction? Or that the court should engage in some sort of valuation of the unrelated claim to figure out what it was really worth, and then figure out some way to factor that value into the analysis of whether the judgment obtained exceeded the offer? Surely someone will argue that this is now authorized by this concurring opinion. This is only the most recent in an endless line of confused and confusing judicial opinions trying to make sense of Rule 1.442 and its contradictions with the statute. Honestly, the Rule does nothing but confuse an otherwise pristinely clear statute, and if it were withdrawn, I doubt anyone would ever miss it. Until that happens, or until the legislature finds time to fix the topic once and for all, the less effort the courts give to trying to explain and justify their way through the morass created by Rule 1.442 and the decisions interpreting it, the better off the law will be. PIP Decisions Under the PIP statute, a provider of emergency services that timely submits a bill within the thirty-day window of §627.736(4)(c) is of course entitled to have that bill covered under PIP, but the bill is subject to any deductibles that exist in the insurance contract. Metro. Cas. Ins. Co. v. Emerg. Physicians of C. Florida, LLP., So.3d , 2015 WL 6757328 (Fla. 5th DCA 11-6-15). The Fourth DCA found no “good cause” for disclosure when a defendant’s insurer requested medical records of individuals unrelated the claimant’s claim in order to determine the reasonableness of charges under the PIP statute. Discovery was limited to the facts of treatment and billing of the claimant only. State Farm Mut. Auto. Ins. Co. v. Delray Med. Ctr., Inc., So.3d , 2015 WL 6735339 (Fla. 4th DCA 11-4-15). Judicial Discretion in Admissibility of Evidence Probably nothing causes a trial judge more angst than decisions about

20 | January/February 2016 |

admissibility of evidence. Sometimes the path is clear, but often not. Especially when it comes to rulings under §90.403, where evidence may be technically material and relevant, but for one reason or another its probative value outweighs the unfair prejudice that its admission would cause. These rulings, by their very nature, are made by sense of touch as much as anything else. It requires the trial judge to consider how the evidence plays into the entire trial, how hotly contested the affected issues are, the emphasis or lack thereof that counsel have placed on the issue in their presentations and its importance in light of other evidence related to the same matters. The law recognizes the importance of this holistic evaluation by the high level of discretion given to the trial court on such matters. In principle we leave it to the trial judge to figure out when to avoid evidence that is primarily intended to embarrass a party, or just make them look bad, unlikable, or different from us. They figure out when to admit and when to exclude evidence of STD’s, marginally related drug use, extra-marital affairs, religion, political views, old crimes, minor crimes, arrests that did not lead to convictions, sexual preference and basically All That Crap. In Maniglia v Carpenter the trial court was faced with this classic situation. So.3d , 2015 WL 6738849 (Fla. 3d DCA 11-4-15). The plaintiff contended he was injured in an auto accident. A month later he played in a gold tournament, got intoxicated, played bumper cars with the carts, then drove out into the roadway in his cart, was hit by a car and fell into the street.

When the police came, he resisted, used profanity against the police and tried to kick out the back window of the police car. The regular kind of stuff that trial judges have to ferret through as part of their job. This judge carved a path she believed to be fair. The court admitted evidence that he played in a golf tournament. That he was playing bumper cars with the carts, that he was intoxicated (which he opened the door to). The court excluded that he had the collision with a car and was knocked to the ground, that he struggled with law enforcement, cussed them out and that he failed to mention these things to his chiropractor when he saw him next. You know, different people might have drawn the line at a different place (like between hitting the ground and hitting the cop??) but what does trial court discretion mean if not the ability to move the needle a little to the left or right based on how it all fits into the trial? Anyway. The verdict was reversed and the case was remanded for new trial with “full details” of the golf cart incident (whatever that means) to be admitted. 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.

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Applications available online or by phone: 305-740-0603 • Toll Free: 866-738-3817 • Email: • | January/February 2016 | 21



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whether he was required to allow FPIC’s contractor to repair his home without agreeing to the proposed repairs, and whether FPIC was entitled to deny coverage when he disputed the scope of the proposed repairs. FPIC did not answer the complaint, but instead filed a motion to abate the action and compel Robinson to comply with its right to Robinson had a homeowner’s insurance policy with FPIC, which repair his property. The trial court granted FPIC’s motion, stating: provided FPIC an option to repair damaged property rather than “The action is abated. Plaintiff shall comply with the Defendant’s right make a cash payment. Robinson experienced damage to his home to exercise its option to repair the Plaintiff’s damages.” and reported it to FPIC. FPIC determined that the loss was covered, notified Robinson of its intent to exercise its option to repair, and Robinson appealed the trial court’s order. The Fourth District found attempted to coordinate repairs through its contractor. Robinson that the trial court’s order departs from the essential requirements of law questioned the scope and sufficiency of the contractor’s proposed because it effectively amounts to a dismissal of Robinson’s complaint. repairs and requested an appraisal. FPIC did not answer Robinson’s The Court reasoned that if Robinson had in fact completed the repairs, inquiry and ultimately denied coverage because of Robinson’s refusal the abatement will likely be indefinite, even though FPIC conceded to allow its contractor to complete the proposed repairs. According in the trial court that Robinson is entitled to a monetary judgment to the petition, Robinson subsequently completed most of the repairs at least in the amount of its contractor’s estimate. See Arch Roberts & at his own expense. Co. v. Auto-Owners Ins. Co., 305 So.2d 882-84 (Fla. 1st DCA 1974) (affirming summary judgment and finding insurer liable for payment Robinson filed a complaint against FPIC alleging breach of contract to the insured in the amount of the appraisal for repair where insured for failing to pay for the covered loss. He also sought a declaratory prevented insurer from completing repairs). Robinson also may be judgment as to whether FPIC properly exercised its option to repair, entitled to dispute the amount of the estimate. See Fla. Ins. Guar. Ass’n rial court departed from the essential requirements of the law in abating insured’s breach of contract action. Robinson v. Florida Peninsular Ins. Co., Case No. 4D14-1350 (Fla. 4th DCA 11-12-15).

22 | January/February 2016 |

v. Branco, 148 So.3d 488, 491-92 (Fla. 5th DCA 2014) (finding that a dispute over the method of a proposed repair to a home is an “amount of loss” issue rather than a coverage issue). Thus, the Court quashed the abatement order and remanded the action to the trial court for further proceedings. Insurance policy does not provide coverage for undamaged portions of building for purpose of achieving aesthetic uniformity with damaged portions. Great American Ins. Co. of NY v. The Towers of Quayside No. 4 Condo Ass’n, No. 15-CV-20056 (S.D. Fla. 11-5-15) Great American issued Quayside a property insurance policy for the period of February 2, 2013 to February 2, 2014. The policy provided first-party property insurance coverage for the condominium building that is the subject of this action. On February 11, 2013, a release of water from a broken valve on an air conditioning unit in the building caused water damage to the drywall, carpeting, baseboards, insulation, and wallpaper in the east hallways of the eleventh floor and the floors below. Floors three through twenty-five of the building have a uniform appearance by design with respect to the carpet, wallpaper, and woodwork in the common area hallways. The carpeted east hallways of the building are separated from the carpeted west hallways by the tiled elevator landing on each floor. Quayside submitted a claim to Great American for loss and/or damage to the building arising from the release of water, including, inter alia, loss and/or damage to drywall, carpeting, baseboards, insulation, and wallpaper of the east hallways of the eleventh floor and floors below. Additionally, Quayside sought coverage to repair or replace undamaged carpeting, wallpaper, baseboards, and woodwork in 1) the west hallways and elevator landings of the eleventh floor and floors below and 2) floors twelve through twenty-five. Quayside contended it was entitled to repair or replacement of these undamaged components because 1) it would otherwise not be possible to achieve aesthetic uniformity between the new carpeting, wallpaper, baseboards, and woodwork installed in the area that suffered water damage and the rest of the building and 2) the loss of aesthetic uniformity devalues the building and constitutes a loss to the building. Great American disputed this position, and informed Quayside that no coverage was available for repair or replacement of building components that are not physically damaged. Great American sought summary judgment on Count I of its Complaint, which requested the entry of a declaration that Great American had no obligation under the policy to provide coverage for repair or replacement of building components that did not sustain direct physical loss or damage. In support of its motion, Great American relied on the policy’s limitation of coverage to “direct physical loss” and explicit exclusion of coverage for consequential loss.1 For its part, Quayside argued that the measure of recovery under the policy must be determined from the perspective of damage to the building as a whole, that the building as a whole suffered direct physical damage from water, and that the policy covers all costs necessary to restore the building to its pre-loss, aesthetically uniform condition.

The trial (district) court found that Great American was entitled to a declaration that it had no obligation to provide coverage to replace: 1) undamaged components on floors twelve through twenty-five or 2) undamaged carpeting in the west hallways of floors three through eleven. The court reasoned that the policy plainly provides coverage only for “direct physical loss,” specifically excludes coverage for consequential loss, and makes no mention of “matching” or “aesthetic uniformity” at all. While the Court found that coverage for matching, for the purpose of achieving aesthetic uniformity, is appropriate where repairs concern “any continuous run of an item or adjoining area” for materials such as wallpaper, baseboards, woodwork, and carpeting, it determined that matching is not otherwise required under the policy. See Ocean View Towers Ass’n, Inc. v. QBE Ins. Corp., No 11-60447, 2011 WL 6754063, at *12 n.4 (S.E. Fla. Dec. 22, 2011). However, as it was unclear whether the wallpaper, baseboards, and woodwork on floors three through eleven form a continuous run from one end of the building to the other, or whether these components are separated from each other in the same manner the carpeting in the east and west hallways is separated by the central elevator lobby on each floor, Great American had failed to establish it was entitled to summary judgment with respect to whether it must provide “matching” coverage for these components. The trial court’s approval of a 1.5 contingency risk multiplier to competent counsel who represented an insured on a purely contingency fee basis, when the insured could not afford to pay for legal representation and no other attorneys were willing to take the case on a contingency and to try it to final judgement, was with merit; however, the trial court’s award of “travel time”, “travel expenses” and “back-up expert fees” was in error, mandating remand so the trial court could accordingly reduce its cost award. Citizens Prop. Ins. Corp. v. Pulloquinga, No. 3D14-1248, 2015 WL 9584387, at *1 (Fla. 3d DCA 12-30-15). Appellee, Dolores Pulloquinga, had a homeowner’s insurance policy with Citizens when her house was destroyed by fire in May, 2011. Pulloquinga immediately reported the claim to Citizens, sat for an EUO without counsel and provided documents to support the loss. Citizens initially provided $5,000 to Pulloquinga, but it made no other payments to her and she eventually had to file an action to attempt to obtain payment under her policy. For the two years between the date of the fire and the trial date of this action, Pulloquinga was required to maintain payment on her mortgage as well as provide for alternative housing, including at certain points having to stay in friends’ homes and at other times in “meager” housing due to her dire financial situation. Although Pulloquinga interviewed seven attorneys who would have accepted her case under an up-front fee arrangement and a few others who would have accepted the case if she had been willing to agree to a partial settlement, she was not financially able to pay an up-front fee and could not agree to allow a partial settlement due to the amount remaining on her mortgage. In other words, Pulloquinga was forced into an all or nothing proposition with regard to recovery on her policy and required counsel who would agree to pursue that position. | January/February 2016 | 23


Ultimately, Pulloquinga retained counsel, under a contingency arrangement, who was willing to try it to final judgment. The action was filed in March, 2012 and was highly contentious, resulting in approximately 27 depositions from Jacksonville to Key West and multiple hearings, including four summary judgment motion hearings. The case was also scheduled for trial twice. Summary judgment was eventually entered in Pulloquinga’s favor on all of Citizens’ defenses, and on the eve of the rescheduled trial – in May, 2013 – Citizens capitulated and agreed to pay the full policy limits as well as Pulloquinga’s attorney’s fees and costs. After the hearing on the amount of fees, the trial court entered the 12–page Final Judgment for Plaintiff’s Attorney’s Fees and Costs, which is the subject of this appeal. After a lengthy analysis of the facts of the case and the evidence submitted by Pulloquinga, the trial court applied a 1.5 multiplier. Regarding the costs, the trial court awarded, inter alia, reimbursement of “travel time”, “travel expenses” and “back-up expert fees.” Citizens timely appealed the trial courts award of attorneys’ fees and costs. Applying the factors of Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), as modified by Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990)2, and the factors from Florida Bar Rule 4–1.5(b)(A), the Third District affirmed the trial court’s award of a 1.5 multiplier for attorneys’ fees because, inter alia, the testimony showed that there was no other counsel in the relevant market who would agree to represent Pulloquinga under the fee arrangement she needed in light of her financial situation. The trial court also found that the case was not a “run of the mill” case because Citizens utilized defenses of arson, insurance fraud, material misrepresentation in the insurance application and insurance policy avoidance, and Citizens elected to contest not only whether the house was a “total loss,” but Pulloquinga’s ownership interest in the home, whether it was actually her homestead and argued that she ran a business out of the home. Conversely, the Third District reversed and remanded the trial court’s award of “travel time” and “travel expenses” because under the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions, travel time should not be awarded. In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d 612, 617 (Fla.2005). Lastly, the Third District reversed the trial court’s awarded costs in the form of back-up expert fees because Pulloquinga did not establish the necessity of the fee. Kendall Racquetball Invs., Ltd. v. Green Cos., Inc. of Fla., 657 So.2d 1187, 188 (Fla. 3d DCA 1995). Because the record did delineate the amount of “travel time” and “travel expenses” as compared to the overall costs, the matter was remanded to the trial court to resolve that issue. However, because the record did show that an award of $7,500.00 was awarded for the “back-up expert fees”, the trial court was instructed to reduce the cost award by that amount too. An insurer owes no duty under Florida law to enter into a so-called Cunningham agreement and, likewise, owes no duty to its insured to enter into a consent judgment in excess of the limits of its policy. Kropilak v. 21st Century Ins. Co., 806 F.3d 1062, 1070 (11th Cir. 2015) This is an appeal from a judgment in favor of an insurance company (“21st Century”) on a claim against it for bad faith. The question before

the Court was whether the District Court erred in withholding evidence from the jury as a result of its grant of a motion in limine and, thus, ruling as a matter of law that 21st Century had no duty to enter into a consent judgment in excess of the policy limits. On October 7, 2008, Robert Kropilak (“Kropilak”) and Nicole Collins (“Collins”) were involved in a vehicle collision in Pasco County, Florida, after Collins improperly made a left-hand turn in front of Kropilak’s motorcycle. Kropilak, who was injured, was transported by helicopter to a hospital. On October 20, 2008, Kropilak’s attorney mailed a copy of the accident, police report to 21st Century along with a letter of representation requesting insurance information. Also on October 20, 2008, the hospital where Kropilak was being treated for his injuries faxed the 21st Century adjuster a hospital lien in the amount of $33,880. Kropilak received a copy of the lien around the same time. On November 10, 2008, 21st Century responded to Kropilak’s attorney by providing the insurance information requested and asked Kropilak’s attorney to contact the 21st Century adjuster if she was open to discussing the possibility of settlement. Thereafter, the 21st Century adjuster learned of the extent of Kropilak’s injuries from State Farm Insurance Company, through which Kropilak held uninsured motorist coverage. Unsolicited, on November 13, 2008—37 days after the accident—21st Century mailed Kropilak’s attorney a check for $10,000, the amount of Collins’ policy limits, in settlement of Kropilak’s claim. Kropilak’s attorney received the check on November 17, 2008; however, Kropilak refused to accept the policy limits3 and did not cash the check. The next day, November 18, 2008, Kropilak filed suit against Collins in a Florida state court, but Collins was not served with the complaint until February 6, 2009. Prior to Collins being served, 21st Century followed up on several occasions, to no avail, with Kropilak’s attorney to inquire about the $10,000 policy limits check that was mailed in November, 2008. On March 5, 2010, over a year and three months after 21st Century had tendered the policy limits, Kropilak’s attorney sent Worman a “settlement opportunity” letter. Among other things, the letter proposed an agreement between 21st Century, Collins, and Kropilak, which according to Kropilak’s attorney, would protect Collins “from financial ruin, but preserve all issues regarding 21st Century’s claims conduct.” Specifically, Kropilak’s lawyer offered a settlement with a consent judgment against Collins for $150,000. The parties would then “look solely to the determination of 21st Century’s liability for the recovery of damages over the policy limits.” 21st Century could defend “in the face of a known reasonable amount of harm that was done to Collins by a breach of the duties of good faith, if any.” Under such an agreement, the letter stated, the insurance company “could settle the personal exposure of Collins without hurting 21st Century’s interests.” The offer remained open for 30 days, Collins was advised of the settlement proposal, and 21st Century determined that a potential verdict between $150,000 and $200,000 was reasonable. Nonetheless, 21st Century did not accept the proposal. Kropilak’s negligence lawsuit against Collins proceeded to trial. On August 6, 2010, a jury returned a verdict in Kropilak’s favor in the amount of $173,097.07. In partial satisfaction of this judgment, 21st Century paid Kropilak the $10,000 policy limits and $2,500 for

24 | January/February 2016 |

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property damage. This left Collins personally liable for a balance of $160,597.07; however, Kropilak and Collins entered into an agreement concerning the unpaid balance of the judgment against Collins, in which Kropilak stipulated that enforcement of liability created by the judgment would be stayed pending the outcome of the bad-faith claim against 21st Century and that the judgment against Collins would be considered satisfied at the conclusion of any bad-faith lawsuit, whatever the outcome. After the bad-faith lawsuit was filed in State court, it was removed to the United States District Court for the Middle District of Florida on the basis of diversity. The bad-faith action articulated two theories of bad faith: (1) that 21st Century improperly “failed to tender its policy limits to settle the claims of [Kropilak] against [Collins] within a reasonable period of time under the circumstances” or the Powell theory, see Powell v. Prudential Prop. & Cas. Ins. Co., 584 So.2d 12 (Fla.3d DCA 1991), and (2) that 21st Century had “unreasonably refused to settle under” the terms proposed by Kropilak’s counsel in the March 5, 2010, settlement opportunity letter.

the policy limits. They state in their appellate brief that the proposal “offered to settle the claims against Collins within the $10,000 policy limits,” and that “[t]he preservation of a bad faith claim against 21st Century for liability above policy limits does not negate the opportunity for 21st Century to have fully settled the claims ... within policy limits.” 21st Century, as noted above, had promptly tendered the policy limits a mere 37 days after the accident by sending a check to Kropilak’s attorney. Kropilak continually refused to cash the check and instead elected to proceed to trial against Collins and then against 21st Century. It was Kropilak, not 21st Century, who had refused to settle within the policy limits.

As a result, the Eleventh Circuit held that an insurer owes no duty under Florida law to enter into a so-called Cunningham agreement and, likewise, owes no duty to its insured to enter into a consent judgment in excess of the limits of its policy. The District Court was, therefore, correct in precluding Kropilak from introducing evidence of the March 5, 2010, settlement opportunity letter in support of the bad-faith claim. Finally, the Eleventh Circuit noted that this conclusion holds During the litigation, 21st Century filed motions seeking protective true whether it applies the de novo standard of review advocated by orders barring Kropilak and Collins from taking the depositions of Kropilak or the abuse-of-discretion standard asserted by 21st Century. 21st Century’s corporate representative and of one of its management- ___________ level employees on the subject of plaintiffs’ second theory of bad faith. Although the Magistrate Judge granted 21st Century’s motions for 1 The policy’s Difference in Conditions (“DIC”) Coverage Form protective orders, the District Court denied the motion of 21st Century provides, inter alia, “We will pay for your ‘loss’ to Covered Property for summary judgment and allowed both theories of liability to proceed from the Covered Cause of Loss.” The DIC Declaration form to trial. On the first day of trial, the District Court, reversing itself, provides, inter alia, “DIC Direct Physical ‘Loss’ The most we will granted a motion in limine filed by 21st Century and excluded any pay for direct physical ‘loss’ from the Covered Cause of Loss…is… evidence concerning the March 5, 2010 settlement opportunity letter, [the limits of insurance set forth in the policy.]” As amended by an accepting 21st Century’s argument that “the proposed agreement bears no endorsement, the policy defines “Covered Cause of Loss” as “direct relevance on the issues, and that any potential relevance is substantially physical ‘loss’ to Covered Property, except those causes of ‘loss’ listed in outweighed by the danger of unfair prejudice.” The Court also noted the exclusions.” Through its Specified Cause of Loss Form, the policy that the Magistrate Judge previously issued a protective order relating specifically excludes coverage for consequential loss, which it defines to that evidence. as “Delay, loss of use, loss of market, or any other consequential loss.” 2 Quanstrom enumerates the following factors: (1) whether the As a result, the jury heard evidence on only Kropilak’s Powell theory, relevant market requires a contingency fee multiplier to obtain and even though the jury found that 21st Century acted in bad faith competent counsel; (2) whether the attorney was able to mitigate the in failing to tender the policy limits until 37 days after the collision, it risk of nonpayment in any way; and (3) whether any of the factors also found in favor of 21st Century on its affirmative defense that there set forth in Rowe are applicable, especially the amount involved, was no realistic possibility of settling Kropilak’s claim within the policy the results obtained, and the type of fee arrangement between the limits. Accordingly, the court entered judgment in favor of 21st Century. attorney and his client. 3 At a later deposition, Kropilak testified that his receipt of the hospital Kropilak timely appealed the District Court’s ruling on the motion in lien prompted him to conclude that he would not accept an offer of limine precluding their second theory of bad faith. Collins’ policy limits to settle his claims against her. 4 Cunningham v. Standard Guaranty Insurance Co., 630 So.2d 179 (F In considering the appealed issue, the Eleventh Circuit noted that the la.1994) District Court characterized the March 10, 2010, letter as proposing a “Cunningham-type” Agreement.4 Florida law is clear that an insurer has no duty to enter into a Cunningham agreement. See Berges v. Infinity Insurance Co., 896 So.2d 665, 668–69 (Fla.2004). Although Kropilak Richard M. Benrubi argued in the papers that the March 5, 2010 “settlement opportunity” a partner of Liggio Benrubi, P.A. in West Palm Beach, has over 20 years experience representing and counseling clients in the letter was not a Cunningham-type Agreement, the Eleventh Circuit areas of insurance coverage, insurance bad faith, personal stated that: injury and wrongful death. He has been a Board Certified Civil Kropilak is disingenuous to the extent he asserts that the proposed agreement was, in essence, an agreement to settle for 26 | January/February 2016 |

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8 C






n October 2015 an Ohio federal jury, after less than a day of deliberations, found DuPont liable for causing the kidney cancer suffered by Mrs. Carla Bartlett.1 The case was the first of 3,554 individual cases filed against DuPont, each alleging severe injuries caused by “C-8”, a key manufacturing component of their “miracle” product Teflon.2

But before the verdict, the unfortunate story of Mrs. Bartlett, and the battle for her recompense, began decades earlier, in 1951, on the banks of the Ohio River in Parkersburg, West Virginia. There, at DuPont’s Washington Works chemical plant, outfall pipes and smoke stacks released hundreds of thousands of pounds of C-8 into the surrounding community. Since that time, only a handful of chemical and polymer-product manufacturers have produced or used C-8, and yet now, the toxic chemical has been found in the blood and organs of humans and animals across the globe.3 You too have C-8 in your blood and it’s not going away any time soon.4 Introduction As early as the 1960’s DuPont knew that C-8 was potentially harmful to employees who came in contact with the chemical and, since the 1970’s, DuPont has known of the toxic and carcinogenic effects of C-8.5 However, DuPont sat on this information for years before going public. To this day DuPont denies that the chemical is toxic to humans, even in the face of overwhelming scientific data showing that C-8 has a “probable link” to six deadly or debilitating diseases including testicular cancer, kidney cancer, thyroid disease, ulcerative colitis, hyperlipidemia, and preeclampsia.6 7 But perhaps the scariest thing about C-8 is its ability to persist in the environment for

by Troy Rafferty & Christopher Paulos

millions of years. The unfortunate reality of this “biopersistence” is global exposure to C-8’s dangerous and highly toxic properties. The Man-Made Miracle Debacle of Science C-8 is a man-made chemical with no known natural mechanism for its existence.8 A member of the family of per- and polyflourinated chemicals (PFCs) that have been used since the late 1940s in a variety of materials, C-8 and its chemical siblings are used in stain/ water/fire-proofing compounds, ballistic resistant materials, electrical insulations, plastics, and non-stick cooking and food container coatings; products often touted as “high-performance.”9 10But what made C-8 an attractive chemical for manufacturing is also what makes it so harmful; it simply will not break down. The use of C-8 is primarily that of a “surfactant,” or soap, intended to assist in the manufacturing processes of polymer coatings that start out as powders, cubes or flakes, and liquids. C-8 is not an ingredient but rather a chemical tool used to prevent the clumping of the polymer product and the clogging of the manufacturing machinery. It is neither incorporated into the end product nor consumed in the manufacturing process. Unless incinerated, C-8 will never break down.11 Despite its knowledge of its toxicity and durability, DuPont simply flushed C-8 down the drain, expelled it to the air, or dumped it in landfills in Ohio and West Virginia. These disposal methods were in direct contradiction to the Materials Data Safety Sheets in DuPont’s possession, but were nevertheless employed by Washington

28 | January/February 2016 |

Works for nearly 50 years.12 The slippery, soluble, soapy nature of C-8 has allowed the chemical to travel far beyond Parkersburg. Throwing the Precautionary Principle to the Wind: Chemical industry standards of care include the “Precautionary Principle.” That is, when the activities of a chemical company raise threats to the environment or human health, precautionary measures should be taken to avoid or limit the threat, and the company should not wait for conclusive proof of a scientific cause and effect relationship between their conduct and harm before acting.13 DuPont completely failed to adhere to the precautionary principle for decades in its use and handling of C-8. Beginning no later than the 1960s, DuPont possessed animal study data demonstrating that C-8 was toxic when inhaled or injected into laboratory animals. These early studies showed that, even at the lowest doses, C-8 was causing liver enlargement and gastrointestinal irritation in study subjects. In the late 1970s DuPont then became aware of the accumulation of C-8 in the blood of humans when 3M (DuPont’s primary C-8 supplier from 1951 to 2001) notified DuPont of elevated organic fluorine levels in the workers exposed to C-8.14 15 At that time, DuPont and 3M launched internal investigations into the toxic and carcinogenic effects of C-8 on animals and humans.16 During this time, DuPont was also provided animal study data by 3M that indicated that C-8 can cross the placental barrier and cause birth defects in rodents.17 In light of this information, DuPont removed all female employees from any business unit that utilized C-8. DuPont also implemented a voluntary employee blood monitoring program and advised its employees to refrain from donating blood in the community.18 Furthermore, in the early 1980s, based upon the data generated by DuPont and 3M’s toxicity investigations, DuPont’s Haskell Laboratory blessed an internal “acceptable exposure level” for humans. The company started searching for alternatives to C-8 in its manufacturing processes. This was the first time that DuPont set the goalposts for human exposure, and DuPont would spend the next 20 years trying to move these limits to its advantage.19 At first blush these efforts by DuPont may seem reasonable, that is until one realizes that these internal efforts of DuPont were not made public or reported as required.20 DuPont took steps to reduce the risks of C-8 exposure for its employees, but these efforts stopped at the fence line of the Washington Works plant site. Unfortunately for the surrounding community, the wide-spread environmental contamination of C-8 did not. Even after DuPont realized that the aquifer under the Ohio River was contaminated with C-8 DuPont continued to hide the dangers about the drinking water from the community. DuPont would eventually develop a “community exposure limit” for airborne and drinking water exposures, but would not disseminate this information publically for years. Instead, DuPont asked employees to secretly retrieve samples of water from their home taps and at gas stations around Parkersburg so that DuPont could understand the degree of exposure to the public.21 It would be another 15 years before DuPont would inform the community that C-8 had been found in the drinking water, and during that time, DuPont continued to amass internal data that proved C-8 was a highly toxic, cancer-causing chemical.

DuPont was able to keep their employees and the few outside parties who were aware of the contamination issues calm by downplaying animal toxicity data and hiding behind the fact that C-8, at the time, was an unregulated chemical that did not appear on the USEPA list of known hazardous chemicals. But in order to end up on the USEPA’s list, the government needs to be provided with accurate information to assess the chemical’s hazards.22 DuPont would purchase drinking water wells whenever C-8 appeared in the samples, and sought permits that would allow DuPont to increase the amount of C-8contaminated waste emitted to the environment from state regulators who were unaware of the toxicity of C-8.23 A reasonably prudent chemical company would have ceased the use of C-8, or at the very least, prevented the emissions of C-8 to the environment because the health effects were either unknown or in dispute. Instead, DuPont increased its use of C-8 during the time that toxicity data and information about large-scale environmental contamination was mounting. Ignoring the Data about the Dangers of C-8 Between 1961 and 1985 DuPont conducted, commissioned, or was aware of at least 19 acute toxicity studies of C-8, the overwhelming majority of which indicated that C-8 was toxic to various species of animals, including dogs, rats, mice and monkeys. At the same time, DuPont possessed information from at least 13 studies that C-8 was toxic when applied dermally, and in one study, was lethal to all test subjects when applied in high doses to the skin of rabbits.24 DuPont also conducted inhalation and injection studies that further confirmed that C-8 was toxic to the skin, organs, and endocrine systems of lab animals.25 26 By 1993, DuPont had completed animal studies focused on determining the carcinogenic hazard of C-8. The results of these studies indicated that C-8 was capable of causing a “triad of tumors” in rats, including adenomas in the liver, pancreas, and testis.27 During this same time, the American Council of Government Industrial Hygienists (“ACGIH”) classified C-8 as an “A-3 Carcinogen,” a likely animal carcinogen.28 Also in 1993, a study conducted by the University of Minnesota linked C-8 exposure to increased prostate cancer in humans.29 This study found a 3.3 fold increase in deaths from prostate cancer experienced by employees at a 3M plant site who worked with C-8 for six months or longer between 1947 through 1983, compared to employees who did not work with C-8. In light of this information, DuPont internally downplayed the results of the study and refrained from informing all of its Teflon employees of the results. Furthermore, DuPont communicated to its employees that the ACGIH classification and its internal studies indicating that the carcinogenic effect of C-8 in animals has “little or no relevance to man”.30 Such a statement flies in the face of basic carcinogen analysis. The standard of care in evaluating carcinogenicity of a substance, as well as the precautionary principle, provide that if a chemical is found to be an animal carcinogen, unless the specific mechanism of action is known to be irrelevant to humans, it must be assumed to be a human carcinogen.31 Despite this standard, and even when faced with multiple studies showing C-8’s cancer-causing abilities and suggesting multiple mechanisms of action, DuPont failed to make any public announcement about the results of the internal studies to the | January/February 2016 | 29

MASSTORTS community whose drinking water it knew had been contaminated with C-8 for nearly a decade. By 1996, DuPont possessed information about testing that linked C-8 to DNA damage.32 Again, DuPont did not publicly warn those consuming water that exceeded even DuPont’s own community exposure levels. DuPont did, however, undertake further study involving primates so as to further deduce the toxic effects of C-8 on humans.33 In November 1998, DuPont was notified that one of the monkeys in the primate studies receiving the highest dose of C-8 was suffering adverse health effects. In February 1999, DuPont knew that one of the “low dose” monkeys was suffering such terrible effects that it had to be euthanized. This was not the only monkey to die during the studies. Not only did these studies confirm the toxicity of C-8 to primates, it also confirmed that DuPont did not know the lowest, non-toxic level of C-8 exposure to primates.34 Internal DuPont documents show that the employees overseeing the study believed the monkey deaths to be “C-8 related,” but in its communications to its employees, DuPont stated that the death was not compound related. Despite the deaths of primates from exposure to C-8, DuPont once again took no assertive step to notify or warn the general public that C-8 was present in their drinking water.35 Opening the Flood Gates: DuPont’s Use of C-8 Perhaps even more alarming than DuPont’s failure to inform the public about the wide-spread contamination of the environment with C-8, was DuPont’s decision, in the face of the toxicity data, to increase its use of C-8 in the manufacturing processes at Washington Works. From 1961 to 2000, the same time in which DuPont was internally confirming the toxicity of C-8, DuPont increased its use of the chemical by 900 percent. This in turn increased C-8 emissions to the environment because DuPont continued to release contaminated waste by flushing waste water into the Ohio River, expelling fumes through stacks, and dumping 7,100 tons of contaminated sludge into unlined and leaky landfills. These disposal methods were used despite the fact that DuPont had been instructed to incinerate C-8 wastes and specifically told not to flush C-8 to surface waters. Furthermore, waste water treatment technology, in the form of Granulated Activated Charcoal (“GAC”) filtration, existed since before DuPont first initiated use C-8, however, DuPont chose not to employ this method of filtration at Washington Works.36 Other viable methods of waste disposal were also available to DuPont that would ensure nearly zero emissions of C-8 beyond the Washington Works fence line, and despite knowledge of these methods, DuPont did not employ them until it was too late.37 Furthermore, DuPont had investigated and found viable safer alternatives to C-8 by 1984, but decided not to utilize these alternatives the due to the cost of implementing changes to accommodate the safer surfactant.38 In 2000, 3M, the primary supplier of C-8 to DuPont, elected to cease production of the chemical in light of the toxicity and biopersistence data at that time.39 DuPont, however, elected to build a $20 million plant in Fayetteville, North Carolina to manufacture C-8 so that it could continue to use the chemical at Washington Works. It would be another 15 years before DuPont completely phased out the use C-8 at the plant.40 In sum, DuPont continued to use, and even increased its use, of a biopersistent and toxic chemical to manufacture Teflon and it

disposed of the waste for decades in a manner that led to pervasive contamination of the land, air, and water. During this entire time, DuPont did nothing to effectively notify the community about the fact or extent of the contamination. It wasn’t until August 2000, after animals in the surrounding community began to die and a lone brave farmer named Wilbur Tennant decided to sue DuPont, that the community surrounding the plant would learn of what was in their drinking water, and in their blood.41 They would also come to learn that the C-8 wasn’t going to go away. Biopersistence: The Danger That Never Goes Away Unlike other toxic chemicals, the durability of C-8 makes it a more nefarious hazard to those exposed. Chemicals that are not easily degraded or passed through the organisms that ingest them are considered “biopersistent.” Biopersistence can result in “bioaccumulation” or the gradual increase in the amount of the chemical in an organism due to poor clearance of the chemical coupled with continued exposure. “Biodegradation” refers to the ability of a chemical to break down in the environment. If a chemical is highly biodegradable, the less likely environmental exposure becomes if the chemical is released. If the chemical is easily passed through or broken down in a person’s body, then the duration of exposure to the chemical is shortened. Therefore, knowing that a chemical is biopersistent and not biodegradable is critical in understanding the risks posed by the chemical, particularly if the chemical is known to be toxic or if the toxicity is not yet fully understood.42 C-8 is biopersistent in humans. The half -life of C-8 in humans is estimated to be 3-5 years.43 This means that the average American who has 3.9ppb of C-8 in their blood , if C-8 exposure ceases completely, it will take nearly 39-65 years for their C-8 serum concentration to drop below the currently achievable detection limit of .0005ppb. 44 45 Moreover, C-8 does not biodegrade in the environment and therefore avoiding exposure to the chemical once it is released is difficult, if not impossible. Experts on biodegradation cannot confirm if C-8 ever breaks down in the environment, and their best guesses of C-8’s persistence in the environment ranges from thousands to millions of years.46 This lack of biodegradation is due to the fact that C-8 does not bind to other natural occurring chemicals and is transported by water very easily. The chemical bonds that hold C-8 together are nearly impossible to break, unless heated to very high temperatures.47 It’s tough and rugged; it simply will not break down. This means that the very first molecule of C-8 ever made, unless disposed of properly, still exists today. This means that every molecule of C-8 that DuPont dumped into the Ohio River or that leached out of a landfill, or that was released into the air over Parkersburg, West Virginia, still exists today. In recent years, C-8 has been found in the blood of humans across the globe, and in wildlife as far away as the Arctic.48 This unique characteristic of C-8 means that the conduct of DuPont in West Virginia has implications far beyond Appalachia. A recent data analysis determined that 94 water systems in 27 states contain levels of C-8 that exceed a “safe level” as set by the Harvard School of Public Health. In total, 7,026,725 people are consuming water from these sources.49 50 In light of the pervasive contamination of Earth with toxic PFCs, 200 scientists from around the globe drafted and signed the Madrid Statement, which expresses their “concern about the production and release into the environment of chemicals, including C-8.51 Additionally, the United Nations recently launched

30 | January/February 2016 |

an investigation in to C-8 and similar pollutants that may lead the way to including the substances in the Stockholm Convention, and result in the world-wide ban or phase-out of the use of these chemicals by man.52 The Litigation Landscape Presently there are over 3,500 individual cases consolidated in the Southern District of Ohio before the Hon. Judge Edmund Sargus. The cases, arising out of both Ohio and West Virginia, are being brought by individual consumers from the six water districts surrounding the Washington Works Plant site, and who had previously raised class claims against DuPont in a series of class action lawsuits filed in Ohio and Virginia. DuPont elected to settle the class cases before trial. As part of the settlement, a medical monitoring and blood testing program was established. The data generated by the blood testing program was then utilized by an independent Science Panel (selected jointly by the parties) to conduct epidemiological research of the Parkersburg community. The statute of limitations for class members’ personal injury claims were tolled during the Science Panel’s research efforts. The parties further agreed to be bound by the findings of the Science Panel in any subsequent suit involving a class member. In 2012, the Science Panel released its findings. The Panel determined that for C-8, when consumed in drinking water containing at least .05ppb for at least one year, there is a “probable link” between the chemical and six human diseases; kidney cancer, testicular cancer, thyroid disease, ulcerative colitis, preeclampsia, and hyperlipidemia. In essence, general causation as to these specific injuries has been established. The 3,500 active cases involve either one or more of the probable link diseases. After a three-week trial last year, plaintiff Ms. Carla Bartlett was awarded $1.6 million in compensatory damages due to having been diagnosed and treated for kidney cancer in 1997 after consuming C-8 containing water for many years. The next trials are scheduled for March & May 2016. Conclusion The devastating and far reaching impact of DuPont’s conduct surrounding its use of C-8 to manufacture Teflon is one of the world’s largest environmental disasters. The unique biopersistent characteristics of C-8, coupled with its toxicity, have given rise to a situation in which the ultimate impact on the planet and all living organisms remains to be seen. Fortunately, early trial results indicate that juries understand the issues and are ready to hold to DuPont accountable for its deplorable actions. _____________ 1 Carla M. Bartlett v. E. I. Du Pont De Nemours & Co., No. 2:13-CV170 (MDL 2433)(S.D. Ohio). The case was tried for the plaintiff by past Perry Nichols Award Winner, Michael Papantonio, of the Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A., along with Robert A. Bilott, and Gary Douglas. 2 “Teflon” is the registered trademark of DuPont, the chemical name is Polytetraflouroethylene. 3 See Konstantinos Prevedouros, et al., Sources, Fate and Transport of Perfluorocarboxylates 40(1) Environ. Sci. Technol., 32-44 (2006); James M. Armitage, et al., Modeling Global Fate and Transport of Perfluorooctanoic Acid (PFOA) and Perfluorooctanoate (PFO) Emitted from Direct Sources Using a Multispecies Mass Balance Model, 43(4) Environ.

Sci. Technol., 1134-1149 (2009); See also Yamishita, et al., A Global Survey of Perfluorinated Acids in Oceans, 51(8-12): Elsevier, 651-668, (2007). 4 See Calafat, et al., Polyfluoroalkyl Chemicals in the U.S. Population: Data from the National Health and Nutrition Examination Survey (NHANES) 2003-2004 and Comparisons with NHANES 1999-2000, 115(11) Environ. Hlth. Persp. 1595-1602 (Nov. 2007); Burris, JM., et al., Determination of serum half-lives of several fluorochemicals: Interim Report #1. Study Sponsor: 3M Company, Corporate Occupational Medicine Department, US EPA AR226-0611 (2000); Burris, JM., et al., Final Report: Identification of fluorochemicals in human sera. III. Pediatric participants in a group A streptococci clinical trial investigation, Study conducted by Corporate Occupational Medicine, Medical Department, 3M Company, 220-3W-05, (2002); see also Taves, DR., Organic fluorocompounds in human plasma: prevalence and characterization. In Biochemistry involving carbon-fluorine bonds. A symposium sponsored by the Division of Fluorine and Biological Chemistry at the 170th meeting of the American Chemical Society. Chicago, IL. (Aug. 26, 1975ed.), Wash. DC, Am. Chem. Scty. Vol.: 117 – 134 (1976). 5 Expert Report of Michael B. Siegel, MD, MPH, Dec. 8, 2014, Case No. 2:13-md-2433 (S.D. Ohio). 6 See C8 Science Panel findings at: prob_link.html. Last accessed on January 12, 2016. At trial, DuPont witnesses continued to deny that C-8 causes disease, see e.g. Bartlett v. E. I. Du Pont De Nemours & Co., No. 2:13-CV-170, Trial Trans. Vol. 11, p. 88, Sept. 29, 2015AM. 7 At trial, DuPont witnesses continued to deny that C-8 causes disease, see e.g. Bartlett v. E. I. Du Pont De Nemours & Co., No. 2:13-CV-170, Trial Trans. Vol. 11, p. 88, Sept. 29, 2015AM. 8 “C-8” is also known as Perfluorooctanoic Acid (PFOA), Pentadecafluorooctonoic Acid, Perfluorocaprylic Acid, Perfluoroctanoic Acid, Ammonium Perfluoroalkyl Carboxylates. 3M distributed both liquid and powder forms to DuPont in various concentrations; the product numbers included “Fluorad” FC-143, FC-118, FC-26, L-4639 and others. 9 Gangal, SB., Perfluorinated Polymers. Kirk Othmer Encyclopedia of Chemical Technology, John Wiley & Sons (2004), DOI: 10.1002/04 71238961.2005201807011407.a02.pub2. Last accessed January 12, 2016. 10 The FDA recently revoked its Food Additive Approval for PFCs as oil and water repellents used in paper food packaging. See http:// Last accessed January 13, 2106. 11 Takahiro, Yamada, et al., Thermal Degradation of Fluorotelomer Treated Articles and Relates Materials, 61(7) Chemosphere 974-984, (Nov. 2005). 12 See Def. Ex. D265 (3M Material Data Safety Sheet for FC-143 (1984)). 13 United Nations Conference of Environment and Development (UNCED). Declaration of Rio. Rio De Janeiro, Brazil: UN 1992. (Principle No. 15). 14 Bartlett Trial Trans. Vol. 2, p. 107, Sept. 15, 2015AM; see also Def. Ex. D352 & Def. Ex. D726. 15 Pltf Ex. P1.513; Pltf. Ex. P1.1 (Letter from Robert A. Bilott to USEPA, March 6, 2001); see also Ubel FA, et al., Health Status of Plant Workers Exposed to Fluorochemicals-a preliminary report, 41(8) Am. Ind. Hyg. Assoc. J., 584-589 (Aug. 1980). 16 Pltf Ex. P1.1, supra. 17 Pltf Ex. P1.4576 | January/February 2016 | 31

MASSTORTS Pltf. Ex. P1.363 In the face of mounting toxicity data, DuPont first set a provisional “Acceptable Exposure Limit” (AEL) of 0.01 mg/m³ for its employees in the September 1979. By 1988, nearly 10 years after it suspected that C-8 was beyond the plant fence line and in the aquifer DuPont set Community Exposure Guidelines (CEG) for airborne emissions and drinking water levels of C-8. DuPont’s initial CEG for drinking water was 1ppb. These efforts and CEG numbers were never communicated to the public. In 2002 DuPont, despite confirming the carcinogenicity of C-8, would increase and publicly announce a CEG of 150ppb with the assistance of industry-sponsored advocacy group TERA. See Bartlett Trial Trans. Vol. 3, 206-216, Sept. 16, 2015AM; Vol. 4, pp. 38-102, Sept. 16, 2015AM, See also Pltf. Ex. P1.364; P1.374; and P1.515. 20 In 2005, DuPont and the USEPA settled claims involving DuPont’s failure to disclose information about C-8 found in the blood of female workers in 1981, DuPont failed to disclose data regarding C-8 in drinking water in the Lubeck and Little Hocking Water Districts, and DuPont failed to disclose blood sampling results from community members taken in 2004, in settling the claims DuPont paid the single largest civil penalty ever assessed by the USEPA for TSCA violations, but admitted no wrongdoing. See Bartlett Trial Trans. Vol.13, 189-200, Oct. 1, 2015AM; Pltf. Ex. P1.558 21 See Bartlett Trial Trans. Vol. 8, pp. 189-190-235, Sept. 16, 2015PM; Pltf. Ex. P1.516; Def. Ex. D16 22 Toxic Substances Control Act 15 U.S.C. §2601, et seq. (1976). See also, NYT Editorial Board, Despite Clear Dangers, DuPont Kept Using a Toxic Chemical, New York Times, January 12, 2016 (discussing new legislation to remove the “catch-22” of self-regulating chemical corporations). 23 Bartlett Trial Trans. Vol. 11, p. 72, Sept. 29, 2015AM; Def. Ex. D894; Bartlett Trial Trans. Vol. 13, pp. 164-170, Oct. 1, 2015PM; Pltf. Ex. P1.7119 24 Riker Laboratories, Report 09790AB0485, March 15, 1981 (cited in 3M Product Toxicity Summary Sheet, May 24, 1996 (C-4124). 25 Kennedy, et al., Food Chem. Toxicol., 30(1) 102-108 (1986). 26 Expert Report of Michael B. Siegel, supra. 27 Bartlett Trial Trans. Vol. 4, p. 100, Sept. 16, 2015AM. 28 Bartlett Trial Trans. Vol. 4, pp. 100-101, Sept. 16, 2015AM 29 Gilliland, FD., et al., Mortality Among Employees of a Perfluorooctanoic Acid Production Plant, Jrnl. Occ. Med., 35(9) 950-954 (1993). 30 Bartlett Trial Trans. Vol. 4, at 101, Sept. 16, 2015AM. 31 Id. 32 Pltf. Ex. P1.977 33 Letter from Robert A. Bilott to USEPA, March 6, 2001, Exs. 77, 84, 93, & 105. 34 It is common practice to determine the “no observable effect level” (NOEL) in chemical toxicity testing so that accurate exposure guidelines can be established. See Environmental Health and Toxicology Specialized Information Services, U.S. Department of Health & Human Services IUPAC Glossary. glossaryn.html. Last accessed January 12, 2016. 35 Bartlett Trial Trans. Vol. 10, 136-137, Sept. 28, 2015AM; Pltf. Ex. P1.767 & 768, 36 Bartlett Trial Trans. Vol. 8, 47-48, Sept. 23, 2015AM. 37 Beginning in 1999, DuPont began incinerating C-8 waste and by 2003, after enforcement action by the USEPA, GAC technology was used on Washington Works waste water. In 2004, by using waste treatment technologies that had been available to it for decades, DuPont 18 19

was finally able to dramatically reduce C-8 emissions from Washington Works. See DuPont Biennial Report for Emissions of PFOA for Calendar Years 2003 & 2004, submitted pursuant to commitments made by DuPont in March 14, 2003, Letter of Intent to Stephen L. Johnson, Assist. Admin., USEPA. 38 Bartlett Trial Trans. Vol. 5 pp. 230-231, Sept. 18, 2015AM; and Vol. 3, pp. 15-25, Sept. 16, 2015AM; See also Pltf. Ex. P1.8274 & Pltf. Ex. P1.823 39 Bartlett Trial Trans. Vol. 6, pp. 185-191, Sept. 21, 2015, AM; Pltf. Ex. P1.181 40 Eilperin, Juliet, Harmful Teflon Chemical To Be Eliminated by 2015, The Washington Post (January 26, 2006). 41 For more on the first lawsuits related to DuPont’s use of C-8 see: Lerner, Sharon, The Teflon Toxin, The Intercept, (Aug. 17, 2015); and Blake, Mariah, Welcome to Beautiful Parkersburg, West Virginia, The Huffington Post (Aug. 27, 2015). 42 Utembe W., et al. Dissolution and Biodurability: Important Parameters for Risk Assessment of Nanomaterials, Particle & Fibre Toxic. 12(11) (2015). 43 Bartlett Trial Trans. Vol. 6, pp.59-61, Sept. 21, 2015, AM. 44 Calafat, et al. supra. 45 Current laboratory testing can achieve a .05 ng/ml detection limit, see e.g. Last accessed January 12, 2016. 46 Liou JS, et al., Investigating the Biodegradability of Perfluorooctanoic acid. Chemosphere, 80(2):176-83 (2010), doi: 10.1016/j. chemosphere.2010.03.009. Epub (2010). 47 Takahiro, Yamada, et al., supra. 48 Vierke, et al., Perfluorooctanoic Acid (PFOA) - Main Concerns and Regulatory Developments in Europe from an Environmental Point of View, Environ. Sci. Eur., 24(16) doi: 10.1186/2190-4715-24-16, (2012). 49 Environmental Working Group, Teflon Chemical Harmful at Smallest Doses; Nationwide Water Sampling, August 20, 2015. Last accessed January 12, 2016. 50 Grandjean P, Clapp R. Perfluorinated Alkyl Substances: Emergence of Insights into Health Risks, New Solutions 2015; 25: 147-63. 51 The Madrid Statement on Poly- and Perfluoroalkyl Substances (PFASs), Envir. Hlth. Persp., 123(5) (May 2015). 52 ChemicalsProposedforListing/tabid/2510/Default.aspx. Last visited January 12, 2016.

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Troy Rafferty Mr. Rafferty is a partner in the Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. firm in Pensacola. He litigates mass tort, pharmaceutical and major personal injury cases throughout the country. He has been appointed to handle some of the nation’s largest pharmaceutical and mass tort cases.

Christopher Paulos Mr. Paulos is an associate at the law firm of Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. in Pensacola, FL. Mr. Paulos is licensed to practice law in California and Florida. He focuses his practice on medical device, pharmaceutical, and environmental mass tort litigation. Mr. Paulos was a member of the Bartlett v. DuPont trial team and will be involved in the upcoming C-8 bellwether trials scheduled to occur in 2016. | January/February 2016 | 33






upreme Court dismisses petition for writ of quo warranto seeking to preclude Division of Administrative Hearings from administering medical malpractice arbitration scheme on grounds of unconstitutionality. Dean v. Division of Administrative Hearings, 2015 WL 9275752 (Fla. 12-17-15). Petitioners sought a writ of quo warranto prohibiting the Division of Administrative Hearings from presiding over any medical malpractice arbitrations under §766.207, et seq., Florida Statutes, on grounds that the caps on damages contained in the statutes render the entire arbitration scheme unconstitutional. In an unpublished opinion, the Florida Supreme Court denied the petition, stating that a writ of quo warranto holding the statutes unconstitutional would be improper, since the arbitration caps operate by statute without any action by the Division of Administrative Hearings.

by Scott R. McMillen & Allison McMillen

Fourth District reinstates multimillion-dollar noneconomic damages verdict for brain-injured child and his mother; also affirms trial court ruling excluding evidence of future Medicaid benefits. Go v. Normil, So.3d , 2016 WL 64560 (4th DCA 1-6-16). A child’s mother sued two doctors for medical malpractice, alleging that the doctors’ failure to properly diagnose her child’s infection had caused him to suffer significant brain injuries. The jury found one doctor 75 percent liable, and awarded over $16 million in economic damages, and $12 million in noneconomic damages. Based on the statutory caps in §766.118, Florida Statutes, the trial judge reduced the noneconomic damages award to $500,000 per claimant. The doctor most at fault appealed on three grounds, two of which the Fourth District Court of Appeal affirmed without discussion. On the third issue, the doctor argued that the trial court had erred in excluding evidence of future free or low-cost healthcare available to the child through Medicaid.

34 | January/February 2016 |

The Fourth District affirmed the trial court’s ruling pursuant to the recent Supreme Court opinion in Joerg v. State Farm Mutual Automobile Insurance Co., 176 So.3d 1247 (Fla. 10-15-15). The plaintiff crossappealed on the issue of the statutory caps on damages. Reaffirming its recent decision in North Broward Hospital District v. Kalitan, 174 So. 3d 403 (4th DCA 2015), the Fourth District held that caps on noneconomic damages are unconstitutional based on the reasoning in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014). First District holds trial court erred in excluding testimony of plaintiff’s expert based on Daubert. Baan v. McAlpin, So. 3d , 40 FLW D2707 (Fla. 1st DCA 12-8-15). The plaintiff sued the county emergency medical services company (“EMS”) for negligence after the death of an eleven-month-old baby. EMS had gone to the baby’s house pursuant to a 911 call reporting that he was in respiratory distress, but left within ten minutes, without the baby. There was conflicting testimony as to what kind of physical examination EMS performed, if any, but the EMS records reflected that the child had normal vital signs and his lungs sounded clear. Less than one hour later, the baby stopped breathing, and he eventually died. The plaintiff’s emergency room physician expert testified in deposition that EMS personnel had violated the standard of care by failing to take the baby to a hospital for evaluation, and that if the hospital had done so, the baby more likely than not would have survived. He also stated that, based on lay witness descriptions of the child’s condition and the timeline of events, it was his opinion that the EMS records were inaccurate. The defendant moved to exclude the expert’s opinion under Daubert, and the trial court granted the motion. The trial court ruled that the expert should have accepted the EMS report as true, and that because he did not, his opinions were based on speculation and “manufactured facts.” On appeal, the First District began its analysis by noting that the plaintiff had not argued that the Daubert standard is procedural and had not been adopted by

the Florida Supreme Court. At least where that issue has not been raised, the First District continued, the Daubert standard applies. The Court concluded that the expert’s testimony clearly met the Daubert requirements in §90.702, Florida Statutes, in that it was “the product of reliable principles and methods” which were applied “reliably to the facts of the case.” According to the First District, there was adequate evidence in the record to support the expert’s opinion that the EMS report was inaccurate, and the trial judge had abused its discretion by making a factual determination that should have been left to the jury. AUTHORS’ COMMENT: This opinion should serve as a reminder to us all to raise the constitutional challenge to the Daubert standard, since not all courts consider the matter settled. (But see, e.g., Perez v. Bell South Telecommunications, Inc., 138 So. 3d 492, 498 n. 12 (3d DCA 2014).) Scott R. McMillen

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

Allison McMillen

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



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RECENT CASES by Michael J. Winer



he workers’ compensation community continues to patiently await the Florida Supreme Court’s decisions in Castellanos (and related attorney fee challenge cases) and in Westphal. For the first time in over 20 years, the Florida Supreme Court is considering multiple workers’ compensation cases which involve significant, ground-breaking issues. Briefing is nearly complete in Daniel Stahl v. Hialeah Hospital and Sedgwick Claims Management Services, CASE #: SC15725, which presents a more plenary challenge to the workers’ compensation law (Ch. 440, Fla. Stat.) being the exclusive remedy for all work accidents.

The claimant alleged she was the prevailing party and sought reimbursement to her attorney for $13.40 in certified mail charges and $31 in photocopy charges for a total of $44.40. Employer/Carrier maintained no costs are due or owing. You would think the EC would make a smart business decision and just pay the $44 in costs to avoid this mess. They didn’t. Instead, they litigated the issue. The JCC denied prevailing party costs under F.S.§440.192(8) and §440.34(3) finding that as the E/C responded within 14 days under the first provision, and within 30 days (eliminating attorney fee entitlement) under the second, no fees or costs were due from the E/C.

As everyone eagerly awaits the outcome of these decisions, a setback of sorts was incurred when the Florida Supreme Court declined to accept jurisdiction in State v. FLORIDA WORKERS’ADVOCATES/Padgett, 167 So.3d 500 (Fla. 3rd DCA 2015), noting that no further requests would be considered. The Third DCA had reversed a Judge Cueto’s much discussed order out of Miami which found that F.S. §440.11 is unconstitutional as the exclusive remedy. That opinion noted the lack of the threshold issues of ripeness and mootness precluded them from addressing the underlying alleged constitutional arguments of FWA, WILG and Padgett, and the impermissible “piggy backing” of new plaintiffs onto a predecessor case could not create standing where the first plaintiff dismissed his claim. Padgett is a “technical” loss on procedural grounds and neither the Third DCA nor the Florida Supreme Court addressed the merits of this challenge. For now, the challenge lies in correcting the procedural defects in that case. In the meantime, the endless pursuit for justice marches on with the cases still pending before the court.

The DCA reversed, noting that neither of those subsections pertain to costs, and that entitlement to costs is distinct from entitlement to attorney’s fees. Whether benefits are timely furnished, either under subsection 440.192(8) or under subsection 440.34(3), is irrelevant on the separate question of whether a party prevails, entitling the party to costs. Prevailing party costs are awarded under F.S.§440.34(3) and are available to the party that prevails “in any proceedings,” which here were initiated with a PFB. Any party who prevails, whether a claimant or not, is entitled to an award of costs. The agreement to provide the benefit after the PFB designated the claimant as the prevailing party for the purpose of costs. The most puzzling thing about this decision is why the carrier practiced such sloppy claims economics. Was it worth all the time and money it paid its attorney to defend a $44 cost claim by the claimant?

Prevailing Party Costs Jennings v. Habana Health Care Center/Gallagher Bassett, So.3d ,41 FLW D17 (Fla. 1st DCA 12-28-15) The claimant appealed the JCC’s denial of prevailing party costs, arguing the JCC based her denial upon the incorrect subsections of the statute, relying on §440.34(3), Florida Statutes (2014), which provides that prevailing parties are entitled to have reasonable costs taxed against opposing parties. The claimant requested authorization of an orthopedic evaluation in a PFB which the adjuster received on 9-11-14. As required by statute, see §440.192(4), Florida Statutes (2014), the PFB included certification (that was not challenged by the employer or its carrier) that she (or her attorney) had made a good faith effort to resolve the dispute over benefits with the carrier. The next day, the adjuster informed the claimant attorney an appointment had been set for 9-15-14.

Costs payable by E/C and jurisdiction of the JCC Gobel v. American Airlines/Sedgwick, So.3d ,40 FLW D261 (Fla. 1st DCA 11-24-15) The E/C agreed to provide certain medical benefits and stipulated to attorney fees and costs payable by the E/C. The motion for approval of fees and costs listed payment of $200 in costs without explanation. The JCC denied the stipulation regarding the costs payable by the E/C because no supporting documentation describing the costs was provided, expressing what seemed to be an unfounded concern that despite the representation of the parties to the contrary, he was unable to determine if the claimed costs were truly costs as opposed to attorney’s fees disguised as costs. The claimant attorney argued under Rule 60Q6.123(5) she was not required to list the costs as they were under $250. The JCC rejected claimant’s argument based upon his determination that the administrative rule is not valid. In other words, the JCC refused to follow the rules of procedure that govern his proceedings. Only in workers’ comp does a judge determine that his own rules are not valid...., but I digress.

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The Court reversed and noted that both the JCC and claimant mistakenly assumed the applicability of Rule 60Q6.123(5) to this case. Rule 6.123(5) applies only to washouts under F.S. §440.20(11) and was inapplicable here. The court held that Florida Administrative Code Rule 60Q6.124(2), which is the applicable rule for fees and costs paid by a carrier apart from §440.20(11) settlements, permits parties to “stipulate to the payment of attorney’s fees and costs,” with no requirement that the agreed upon costs be justified or detailed. Such matters are governed by the law of contracts and settlement, with no specialized rules. Because the claimant was not being asked to pay the costs incurred by his lawyer, the JCC’s apparent concern for Claimant’s welfare is misplaced where the E/C agrees to pay the payment of unspecified costs. Entitlement to Appellate Attorney Fees Thyssenkrupp Elevator/Sedgwick v. Blackmon, So.3d ,41 FLW D50 (Fla. 1st DCA 12-31-15) Under F.S.§440.34(5), a claimant may be awarded an E/C paid appellate fee on a discretionary basis. Ordinarily, entitlement is not established where an appellant files a notice of appeal and soon thereafter seeks dismissal, leaving little doubt about whether the appeal will be pursued. In sharp contrast, the facts in this case showed that the Appellant received an extension of time for filing its initial brief, missed the extended deadline, and told Appellee’s counsel that the brief was almost done and the he intended to file it. Even after this Court issued a show cause order, a brief never materialized; instead, a voluntary dismissal was filed. Under these circumstances, Appellee’s appellate counsel was justified in undertaking typical appellate tasks that required the expenditure of attorney time and a fee was owed by the E/C. _____________ See Castellanos v. Next Door Co., 124 So.3d 392 (Fla. 1st DCA 2013), in which the following question was certified: “WHETHER THE AWARD OF ATTORNEY’S FEES IN THIS CASE IS ADEQUATE, AND CONSISTENT WITH THE ACCESS TO COURTS, DUE PROCESS, EQUAL PROTECTION, AND OTHER REQUIREMENTS OF THE FLORIDA AND FEDERAL CONSTITUTIONS.” 1

See Westphal v. City of St. Petersburg, 122 So. 2d 440 (Fla. 1st DCA 2013) (en banc), review pending in the Supreme Court of Florida. See Westphal v. City of St. Petersburg, 143 So.3d 924 (2013); CASE NO.: SC13‑1930. 2

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

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ROCK ‘N’ ROLL HAS “THE KING.” BASKETBALL HAS “THE MAILMAN.” WE LAWYERS HAVE “THE RULE.” next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial.

Generally Codified in 1990, Section 90.616, entitled “Exclusion of Witnesses,” states: (1) At the request of a party the court shall, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2). (2) A witness may not be excluded if the witness is: (a) (b)

(c) (d)

A party who is a natural person. In a civil case, an officer or employee of a party that is not a natural person. The party’s attorney shall designate the officer or employee who shall be the party’s representative. A person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s cause. In a criminal case, the victim of the crime, the victim’s

The Rule is meant “to avoid a witness coloring his or her testimony by hearing the testimony of another, thereby discouraging fabrication, inaccuracy and collusion.” Duncan v. State, 727 So. 2d 413, 414 (Fla. 5th DCA 1999); see also Dumas v. State, 350 So. 2d 464, 465 (Fla. 1977) (“The rule of sequestration is intended to prevent the shaping of testimony by witnesses.”). The Rule may be invoked before any witness testifies or during trial after some testimony has been taken. Lambert v. State, 560 So. 2d 346 (Fla. 5th DCA 1990). Trial Court Discretion Florida courts adhere to the pre-Code common law principle that trial judges have wide latitude in determining exemptions to The Rule: “We have explained that ‘[t]he rule of witness sequestration is not an

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absolute rule which must be invoked at the mere request of counsel. The trial judge is endowed with a sound judicial discretion to decide whether particular prospective witnesses should be excluded from the sequestration rule.” Garcia v. State, 949 So. 2d 980, 993 (Fla. 2006) (quoting Randolph v. State, 463 So. 2d 186 (Fla. 1987)). Witnesses Who May Not Be Excluded in Civil Cases Parties. The Rule itself exempts (1) parties who are natural persons and (2) designated representatives of parties in civil cases who are not natural persons. Florida law treats wrongful death survivors like parties in some instances (discovery obligations) but not in others (PFS sanctions). For purposes of The Rule, the personal representative is treated as a party, but the statutory survivors are not. Therefore, a court does not abuse its discretion by excluding them from the courtroom. Benjamin v. Tandem Healthcare, 93 So. 3d 1076, 1083-84 (Fla. 4th DCA 2012). Representatives. Corporate employees and officers are subject to exclusion unless they are designated by counsel as the party’s representative. This is in keeping with pre-Code common law. See Polyglycoat Corp. v. Hirsch Distributors, 442 So. 2d 958, 959 (Fla. 4th DCA 1983). A party may not designate an expert as a representative unless the expert is an officer or employee. Black v. Sears, Roebuck & Co., 621 So. 2d 712, 712-13 (Fla. 4th DCA 1993). Essential Persons. Subsection (3) exempts a person whose presence is essential to the presentation of a party’s case. This may be satisfied “[w]hen it is shown that the presence of a witness will not harm the party requesting exclusion and it is shown that it will be beneficial to the opposing party to have the witness immediately available to give advice and information….” Goodman v. W. Coast Brace & Limb, 580 So. 2d 193, 195 (Fla. 2d DCA 1991); but see id. at 195 (citing federal cases holding “it must be shown that the witness has ‘such specialized knowledge or intimate knowledge of the facts of the case that a party’s attorney could not effectively function without the presence and aid of the witness....’”). “This exception is applied most commonly to expert witnesses because ‘experts are testifying to their opinions rather than to factual matters.’ However … the trial court ‘has wide discretion in determining which witnesses are essential.’” Knight v. State, 746 So. 2d 423, 430 (Fla. 1998) (quoting Ehrhardt, Fla. Evidence § 616.1). See also Hilton v. State, 117 So. 3d 742, 752 (Fla. 1st DCA 2013) (no error in permitting mental health expert to remain in courtroom to provide “meaningful assistance” where he “sat through the entire penalty phase … and handed notes to [counsel].”); Baker v. Air-Kaman of Jacksonville, 510 So. 2d 1222 (Fla. 1st DCA 1987) (“In Florida, a trial judge in his discretion may exempt an expert witness from the rule even though the rule has been invoked.”) See generally Ehrhardt, Fla. Evidence §616.1 at 765-66 & 16 (2015) (collecting cases on expert witnesses). The burden “is on the party seeking to avoid sequestration of a witness to demonstrate why the presence of the witness is essential.” Hernandez v. State, 4 So. 3d 642, 663 (Fla. 2009) (approving exemption for psychiatric expert who did not rebut any factual assertions by lay witnesses and there was no indication he based his opinions on those of the other experts’ testimony).

Depositions Before adoption of section 90.616, Florida Statutes, the courts were split over whether The Rule applied in depositions. The Fourth DCA observed that “there is no precise rule written down in Florida,” but nevertheless concluded that The Rule applied to depositions. Dardashti v. Singer, 407 So. 2d 1098 (Fla. 4th DCA 1982). The First DCA disagreed, holding that in the absence of a written rule of sequestration, the rules of civil procedure governed and the party seeking to invoke the rule had to seek a protective order to exclude a witness from deposition. Smith v. S. Baptist Hosp. of Fla., 564 So. 2d 1115 (Fla. 1st DCA 1990). Section 90.616 applies to a “proceeding,” an ambiguous term at best. Professor Ehrhardt notes that although this section does not explicitly identify depositions as proceedings, “the concerns it addresses obviously apply to deposition testimony.” Ehrhardt, Fla. Evidence § 616.1 at 762 n.4 (2015) (noting split among federal authorities on this issue). This observation is consistent with the legislative note referencing Dardashti during the passage of section 90.616. See generally Bryan R. Rendzio, Invoking “The Rule” During Depositions? Absolutely “Maybe,” 82 Fla. Bar J. 54, 56 (Nov. 2008). The term “proceeding” is used throughout the Code in ways that may either support or undermine one’s characterization of a deposition as a “proceeding.” No Florida case has definitively answered this question in the 25 years section 90.616 has been on the books. Communicating With Witnesses Outside the Courtroom In Baker v. Air-Kaman of Jacksonville, 510 So. 2d 1222 (Fla. 1st DCA 1987), defense counsel supplied daily transcripts to his expert witness who had been excluded under The Rule. The parties agreed this was a violation of The Rule so the court neither addressed the issue nor questioned the parties’ conclusion. In Chamberlain v. State, 881 So. 3d 1087, 1100 (Fla. 2004), a witness remained during recess to ask about being recalled to the stand. The court found no violation of The Rule because there was no indication that the witness heard another witness’s testimony or that he discussed his own testimony with another witness. Of course this suggests that such communications would have violated The Rule. Professor Ehrhardt cites both Wigmore and federal cases (persuasive authority in Florida) extending The Rule to prohibit discussion between witnesses and provision of transcripts to witnesses. Ehrhardt, Fla. Evidence § 616.1 at 762-63 (2015). Few would wish to find themselves before a judge trying to defend this or any similar end runs. The Rule does not prohibit an attorney from “talking with a witness about the testimony he or she will give in a future court appearance.” Nieves v. State, 739 So. 2d 125, 126-27 (Fla 5th DCA 1999). Sanctions for Violating the Rule If the trial judge finds that a witness violated The Rule, “it is within his sound judicial discretion to determine how to remedy the violation.” Del Monte Banana Co. v. Chacon, 466 So. 2d 1167, 1171 (Fla. 3d DCA 1985). See also Baker v. Air-Kaman of Jacksonville, 510 So. 2d 1222, 1223 (Fla. 1st DCA 1987). (“The decision … whether one who has been placed under the rule but who nevertheless has remained in the courtroom during the taking of testimony shall be permitted to testify, is within the discretion of the trial court.”) A witness should be precluded from testifying only if the court finds “the witness acted | January/February 2016 | 39


with the knowledge, consent, procurement or connivance” of the party calling the witness. Dumas v. State, 350 So.2d 464, 466 (Fla. 1977). Even then, the court should determine that the testimony differed from what would have been said absent violation of The Rule. Steinhorst v. State, 412 So. 2d 332, 336 (Fla. 1982). TRIAL NOTEBOOK – A QUICK REFERENCE FOR TRIAL: Routine Practice • “Evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice.” Fla. R. Evid. 406. • Distinguish from character evidence – “While character evidence is a general description of one’s disposition for a particular trait, habit is a person’s regular response to a repeated specific situation ... since it is not character evidence, evidence of habit or routine practice is not limited by the restrictions placed upon character evidence by sections 90.405 and 90.405.” Ehrhardt, Fla. Evidence § 406.1 at 353 (2015). • A party may prove routine practice by demonstrating specific instances of past conduct or by opinion testimony by someone with requisite knowledge. Ehrhardt, Fla. Evidence § 406.1 at 355 (2015). • Evidence of custom within a community is different and is not controlled by Rule 406. General custom is inadmissible to prove that a person or organization followed the custom on a given occasion, but it is relevant to prove the reasonableness (or unreasonableness) of one’s acts. Ehrhardt, Fla. Evidence § 406.1 at 356 (2015). • Evidence of an individual’s habits is not included in the Florida rule (though it is in the federal rule). But this does not mean habit evidence is never admissible. It may be admitted “to show the person’s conduct on a specific situation ... when it corroborates other evidence of the occurrence of the event.” Ehrhardt, Fla. Evidence § 406.1 at 359 (2015). • RECENT CASES OF INTEREST NOTE: Recent cases may not be released for publication. First DCA takes a shot across Daubert’s bow. Plaintiff’s expert ER physician testified that EMS personnel breached the standard of care by failing to transport to the hospital a baby in respiratory distress—a violation of its own EMS protocols. The doctor opined that having done so more likely than not would have saved the child’s life. Defendant brought a Daubert challenge arguing that his testimony was unreliable because it was rooted in the assumption that the child was experiencing a detectable respiratory problem when EMS arrived. Witnesses corroborated this and claimed the EMTs never assessed the child; but the EMS report included purported observations made on the visit. The trial court granted the Daubert challenge, finding “the only evidence as to the child’s true respiratory status was recorded by the paramedics,” and that the expert’s opinion was based on speculation and “manufactured facts.” It then granted summary judgment for defendant. The First DCA reversed. “An expert is entitled to rely on any view of disputed facts the evidence will support.” Therefore, “the trial court made a factual determination that should have been left

to the jury….” The EMTs own protocols were deemed one “salient ‘reliable principle’” on which the expert relied. Interestingly, the opinion also raised Frye and seemed to invite constitutional challenges to Daubert, stating in a footnote: “Appellant does not argue that chapter 13–107, section 1, Laws of Florida, in amending section 90.702, Florida Statutes (2014), effected a change in procedure that must be adopted by the Florida Supreme Court. See Art. V, §2(a), Fla. Const. At least where, as in the present case, the constitutional issue is not raised, First District precedent teaches ‘that the Daubert standard [is] applicable to all expert testimony.’” This prompted an objection from Judge Osterhaus: “I do not … join the majority opinion’s inapplicable Frye-based discussion, nor its suggestion in a footnote that a constitutional challenge to the Daubert standard in § 90.702, Florida Statutes, might have netted a Frye-based analysis.” Baan v. Columbia Cty., 2015 WL 8114622, at *4 (Fla. 1st DCA Dec. 8, 2015). Trial courts must apply Binger in ruling on undisclosed witnesses. The pretrial order required disclosure of witnesses (including “individual proper names”) 15 days before trial. Defendant listed the “Corporate Representative of Vericrest Financial, Inc.” At trial the bank called an individual as its corporate rep and plaintiff objected that the witness had not been disclosed. Defendant argued it did not know who would serve as corporate rep at the time of disclosure and there was no prejudice to plaintiff. The trial court refused a continuance, struck the witness, and entered an involuntary dismissal. The Third DCA reversed and remanded for a new trial because the trial court failed to consider the factors set forth in Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981), which include prejudice to the opposing party: “While the bank did not provide the name of the specific corporate representative it intended to call, Perez was on notice that the bank intended to call a corporate representative who would testify as to the relevant documents that had been produced during discovery. And there is no suggestion that Perez sought to either to secure the identity of the bank’s witness or to take that person’s deposition before trial.” Deutsche Bank Nat. Trust Co. v. Perez, 2015 WL 8347002 (Fla. 3d DCA Dec. 9, 2015). Florida Supreme Court explains when voice-recognition testimony is admissible. The issue was an investigator’s voice identification of a defendant based upon 911 recordings. One of the victims called 911 during the prelude to a double-homicide. The defendant made statements to each of the victims in the course of murdering them while the 911 operator listened. Defendant denied it was his voice. A detective identified his voice based solely on comparison to recordings between defendant and his family members during pretrial custody. The Florida Supreme Court reversed the conviction based upon cumulative errors, including “permitting a law enforcement officer to testify to voice identification simply because he listened to jailhouse recordings of [defendant] on multiple occasions.” As a general rule, proof of identify may be made by voice-recognition testimony, but only if the witness (1) was an eyewitness, (2) has some “prior special familiarity with the voice,” or (3) is an expert in voice identification. The detective was not an eyewitness or an expert. That he had listened to the 911 call many times did not amount to “prior special familiarity

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with the voice.” The court distinguished earlier cases holding that a voice recording may be authenticated (to the court’s satisfaction) by an officer based on conversations with a defendant, which is not the same as a police officer testifying to a jury that the recording is in fact the defendant. Evans v. State., 2015 WL 7008526 (Fla. Nov. 12, 2015). Expert testimony may be permitted on reliability of eyewitnesses. “In determining whether an eyewitness’s identification in a case will require any special knowledge in order for a jury to form its conclusions and whether expert testimony would assist the jury in understanding the evidence, trial courts should consider the presence of certain circumstances that, according to literature in the field, could impact a witness’s identification” including time, stress, crossracial identifications, unconscious transference and the presence of weapons. The case thoroughly discusses this topic. Jones v. State, 2015 WL 7566260 at *4 (Fla. 2d DCA 11-25-15). Citations “or lack thereof ” are STILL not admissible. Plaintiff sued a tugboat company alleging that the tugboat’s mooring configuration caused currents in Longboat Pass to suck the plaintiff under, resulting in his death by drowning. Plaintiff alleged defendant violated a Coast Guard regulation. Defendant said this opened the door to evidence that the tugboat captain did not receive a citation. The trial court agreed and was reversed. The Second DCA said this was no different than an allegation that a negligent driver ran a stop sign or violated some other traffic regulation, which does not open the door on whether a citation was issued: “Arguing that a defendant violated a provision of law that is relevant to the determination of negligence simply does not open the door to admitting a law enforcement officer’s decision on whether to issue a citation for that violation.” Soto v. McCulley Marine Servs., 2015 WL 8921897 at *3 (Fla. 2d DCA 12-16-15).

activity; and (4) it was a regular practice of that business to make such a record. The proponent of the evidence must present this information in one of three formats: (1) testimony of a records custodian, (2) stipulation by the parties, or (3) a certification or declaration that complies with sections 90.803(6)(c) and 90.902(11). As a general rule, the authenticating witness need not be the person who actually prepared the business records,” and “[t]he records custodian or any qualified witness who has the necessary knowledge to testify as to how the record was made can lay the necessary foundation.” Because the authenticating witness must be able to establish each of the predicates, he or she “must be well enough acquainted with the activity to give the testimony.” Morrill v. State, 2015 WL 9287015 at *3 (Fla. 1st DCA 1222-15) (citing Yisrael v. State, 993 So. 2d 952 (Fla. 2008) and Nationstar Mortg., LLC v. Berdecia, 169 So. 3d 209 (Fla. 5th DCA 2015)). Attorney performing work need not testify in fee hearing. Wife submitted time records and expert testimony on the reasonableness of the fees. The trial court granted a directed verdict/involuntary dismissal because the attorney performing the work did not testify. The Third DCA reversed: “Florida law requires a party seeking attorney’s fees to provide proof (a) ‘detailing the nature and extent of the services performed and ... [ (b) ] expert testimony regarding the reasonableness of the fees.’ Where a party has provided sufficient, admissible proof of these two components, no court has further mandated direct testimony from the attorney who performed the services.” Cozzo v. Cozzo, 2015 WL 7709435 at *1 (Fla. 3d DCA 11-25-15) (quoting Trumbull Ins. Co. v. Wolentarski, 2 So.3d 1050 (Fla. 3d DCA 2009)).

The business records exception in a nutshell. “[T]o secure the admissibility of evidence under the business records exception, the proponent of the evidence must show that: (1) the record was made at or near the time of the event; (2) the record was made by, or from information transmitted by, a person with knowledge; (3) the record was kept in the ordinary course of a regularly conducted business

Matt Schultz

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

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Awakening From The Hague Convention Nightmare

ne of a trial lawyer’s worst nightmares is to find out that the defendant in a new case is a foreign national who has returned to a home country that is a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, art. 21, Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163. (Hereinafter the “Hague Convention”). Unlike the service of process procedures applicable where the defendant is a resident of a different state, which essentially authorize out-of-state service that complies with Florida procedures, Section 48.194(1), Fla. Stat. (2014), provides “[s]ervice of process on persons outside the United States may be required to conform to the provisions of the Hague Convention ....” “In Florida, the Hague Convention applies in all cases ‘where there is occasion to transmit a judicial or extrajudicial document for service abroad.’ “ Grupo Radio Centro S.A.B. de C.V. v. Am. Merch. Banking Grp., Inc., 71 So. 3d 151, 151 (Fla. 3d DCA 2011) (quoting Chabert v. Bacquie, 694 So. 2d 805, 812 (Fla. 4th DCA 1997)); see SDS-IC v. Fla. Concentrates Int’l, LLC, 157 So. 3d 389, 391 (Fla. 2d DCA 2015) (“Article 1 of the Hague Convention provides that it ‘shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.’” (quoting Hague Convention, supra, at 362)). And where it applies, “compliance with the Convention is mandatory.” Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988)(emphasis added). There are sixty-five members of the Hague Convention. The Convention has been described as providing “simple and certain means by which to serve process on a foreign national.” Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 643 (5th Cir. 1994) (citing Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 706 (1988)). However, in practice, the process is anything but “simple.” The “primary innovation” of the Hague Convention is the requirement

that each signatory nation designate a central authority (“Central Authority”) to receive requests for service of judicial documents from other signatory nations. Schlunk, 486 U.S. at 698. The often-frustrating process may be summarized as follows:

Request for Service. The court or an officer of the court (including the plaintiff’s attorney) sends a request form, with two copies of the documents to be served, to the foreign country’s Central Authority. The “standard terms in the model [form] annexed” to the Hague Convention must be written in English, French, or an official language of the country where service of process is to be effected. Likewise, the Central Authority may (and usually does) require translation of the documents to be served into the official language (or one of the official languages) of the foreign country being addressed.

Service. Upon receipt of proper documents, the foreign country’s Central Authority effects service pursuant to the foreign country’s laws – or as otherwise requested by the plaintiff, as long as the plaintiff’s request is consistent with the foreign country’s laws. That process can take a very long time, with poor communication to be expected from the Central Authority and difficulty coordinating with the entity designated by that authority about the mechanics of locating the defendant and serving the process. It is this part of the process that a recent Florida decision has made much more simple.

Return of Service. Once service has been completed, the Central Authority will complete the return of service form, as annexed to the Hague Convention. The return of service will be forwarded, through the appropriate channels, to the officer of the court who

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The prevailing view among the circuits of the U.S. court of appeals that have addressed this issue is that article 10(a) permits service by mail, provided the destination country has not objected. See Brockmeyer v. May, 383 F.3d 798, 803 (9th Cir. 2004); Ackermann, 788 F.2d at 839; see also Research Sys. Corp. v. IPSOS Publicite, 276 F.3d 914, 926 (7th Cir. 2002); Koehler v. Dodwell, 152 F.3d 304, 308 (4th Cir. 1998). The courts in Brockmeyer and Ackermann looked beyond the text to the intention of the drafters and the purpose of the Hague Convention to reach this conclusion. Brockmeyer, 383 F.3d at 802-03; Ackermann, 788 F.2d at 839-40. Several Florida federal district court opinions are consistent with this line of authority. See, e.g., Geopolymer Sinkhole Specialist, Inc. v. Uretek Worldwide Oy, No. 8:15-cv-1690-T-36JSS, 2015 U.S. Dist. LEXIS 106109, 2015 WL 4757937 (M.D. Fla. Aug. 12, 2015); TracFone Wireless, Inc. v. Unlimited PCS Inc., 279 F.R.D. 626 (S.D. Fla. 2012); Julien v. Williams, No. 8:10-cv-2358-T-24 TBM, 2010 U.S. Dist. LEXIS 132704, 2010 WL 5174535 (M.D. Fla. Dec. 15, 2010); Conax Fla. Corp. v. Astrium Ltd., 499 F. Supp. 2d 1287 (M.D. Fla. 2007).

BY ROY D. WASSON initiated the request. The return of service will reference the identity of the person served and the time, place, and method of service. Or, if service was unsuccessful, the return of service will provide an explanation. This article deals with the second of those three stages of service under the Hague Convention. For most of the fifty-year history of the Convention, after the difficult task of completing and translating the proper forms to provide to the Central Authority for service, trial lawyers have been required to perform the arduous and expensive task of identifying the accepted methods of service in the receiving country, locating a reasonably-priced vendor to perfect service, and complying with the requirements of getting the documents to that vendor in proper condition. It has been challenging to say the least to coordinate with those process servers in locating the defendant and delivering suit papers upon it. In a recent Florida appellate decision, Portalp Int’l SAS v. Zuloaga, No. 2D15-1676; 2015 Fla. App. LEXIS 18936; 40 FLW D2791 (Fla. 2d DCA 12-18-15), the court made our jobs much easier by deciding that service of process only by mail is permissible under article 10(a) of the Hague Convention. Section 10(a) states that “[p]rovided the State of destination does not object, the present Convention shall not interfere with . . . the freedom to send judicial documents, by postal channels, directly to persons abroad.” Hague Convention, supra, at 363 (emphasis added). The issue was before the Second District in Portalp was whether the word”send” meant “serve” as we understand that term in the civil procedure context. This was an issue of first impression in Florida. Athough several circuits of the U.S. courts of appeals and several Florida federal district courts have considered the issue, resulting in a split of authority, the issue has not been addressed by the U.S. Supreme Court or the Eleventh Circuit.

On the other hand, the Fifth and Eighth Circuits have determined that article 10(a) does not permit service of process by mail and that article 10(a) only applies to the sending of post-service documents. Nuovo Pignone, SpA v. Storman Asia M/V, 310 F.3d 374, 384 (5th Cir. 2002); Bankston v. Toyota Motor Corp., 889 F.2d 172, 174 (8th Cir. 1989). Relying on canons of statutory construction, these courts determined that the language of the Hague Convention was conclusive and reasoned that had the drafters intended to allow for service of process by mail they would have used the term “serve” or “service” in article 10(a) instead of the term “send” since forms of the term “service” were otherwise used throughout the Hague Convention. See Nuovo Pignone, 310 F.3d at 384; Bankston, 889 F.2d at 173-74. A number of Florida federal district court opinions are consistent with this line of authority. See, e.g., Intelsat Corp. v. Multivision TV LLC, 736 F. Supp. 2d 1334 (S.D. Fla. 2010); Arco Elecs. Control Ltd. v. Core Int’l, 794 F. Supp. 1144 (S.D. Fla. 1992); Wasden v. Yamaha Motor Co., Ltd.,131 F.R.D. 206 (M.D. Fla. 1990); McClenon v. Nissan Motor Corp., 726 F. Supp. 822 (N.D. Fla. 1989); In re MAK Petroleum, Inc.,424 B.R. 912 (Bankr. M.D. Fla. 2010). In siding with the case law permitting service under the Convention by mail, the Portalp court first looked to the Convention’s stated purpose. The preamble of the Hague Convention provides that it was created to simplify and expedite the service of judicial and extrajudicial documents abroad. Hague Convention, supra, at 362; accord Grupo Radio Centro, 71 So. 3d at 151 (“The Hague Convention is a multilateral treaty that was formulated in 1964 . . . to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad.” (quoting Volkswagenwerk, 486 U.S. at 698)). Further, article 1, defining the scope, provides that the Hague Convention only applies “where there is occasion to transmit a judicial or extrajudicial document for service abroad.” Volkswagenwerk, 486 U.S. at 699 (emphasis added) (quoting Hague Convention, supra, at 362). This limiting language was included in the final text of the Hague Convention to address the delegates’ criticisms that the language in the preliminary draft “suggested that the [Hague] | January/February 2016 | 43


Convention could apply to transmissions abroad that do not culminate in service.” Volkswagenwerk, 486 U.S. at 701. The Second District held that interpreting article 10(a) to apply only to post-service documents would be inconsistent with the Hague Convention’s purpose and scope. Therefore, it is appropriate to consult extraneous sources such as “the history of the treaty, the negotiations, and the practical construction adopted by the parties” to determine the meaning of article 10(a). Wigley, 82 So. 3d at 935 n.1 (quoting Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32, 63 S. Ct. 672, 87 L. Ed. 877, 97 Ct. Cl. 731 (1943)); accord Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134, 109 S. Ct. 1676, 104 L. Ed. 2d 113 (1989). In analyzing whether article 10(a) of the Hague Convention was intended to permit service by mail, the Ninth Circuit in Brockmeyer considered various extraneous sources including commentaries on the history of the Hague Convention negotiations: According to the official Rapporteur’s report, the first paragraph of [a]rticle 10 of the draft Convention, which “except for minor editorial changes” is identical to [a]rticle 10 of the final Convention, was intended to permit service by mail. A “Handbook” published by the Permanent Bureau of the Hague Convention, which summarizes meetings of a “Special Commission of Experts,” states that to interpret [a]rticle 10(a) not to permit service by mail would “contradict what seems to have been the implicit understanding of the delegates at the 1977 Special Commission meeting, and indeed of the legal literature on the Convention and its predecessor treaties.” As further evidence of the understanding of the parties at the time the Hague Convention was signed, the United States delegate to the Hague Convention reported to Congress that [a] rticle 10(a) permitted service by mail. Brockmeyer, 383 F.3d at 802-03 (citations omitted); see Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1233, 188 L. Ed. 2d 200 (2014) (“It is our ‘responsibility to read the treaty in a manner consistent with the shared expectations of the contracting parties.’” (quoting Olympic Airways v. Husain, 540 U.S. 644, 650 (2004))). The court reviewed the opinions of signatory countries to the Hague Convention, which reflected an “essentially unanimous view” that service by mail is permitted by the Hague Convention. Brockmeyer, 383 F.3d at 802; see also Abbott v. Abbott, 560 U.S. 1, 16 (2010)(citing El Al Isr. Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999) (holding that in interpreting a treaty, the opinions of other signatories are entitled to considerable weight)). Further, the Second District in Portalp noted the Brockmeyer court’s consideration of the position taken by the United States Government. See Abbott, 560 U.S. at 15 (“It is well settled that the Executive Branch’s interpretation of a treaty ‘is entitled to great weight.’ “(quoting Sumitomo Shoji Am., 457 U.S. at 185)); Kolovrat v. Oregon, 366 U.S. 187 (1961) (“While courts interpret treaties for themselves, the meaning given them by the departments of government particularly

charged with their negotiation and enforcement is given great weight.”). Moreover, “[t]he United States government, through the State Department, has specifically disapproved the Eighth Circuit’s holding in Bankston,” and “State Department circulars also indicate that service by mail is permitted in international civil litigation.” Brockmeyer, 383 F.3d at 803. Distilling all of that information, Judge Black’s opinion in Portalp holds that “[i]t is apparent that interpreting article 10(a) to permit service of process by mail is consistent with the intent and expectations of the signatories. This interpretation is also – consonant with the principles deemed controlling in the interpretation of international agreements’ to avoid ‘a narrow and restricted construction.’” 2015 Fla. App. LEXIS at *10 (citing Factor v. Laubenheimer, 290 U.S. 276, 293 (1933). “Furthermore, in reaching the opposing conclusion that article 10(a) does not permit service of process by mail, the courts in Nuovo Pignone and Bankston relied on canons of statutory construction, a practice the Supreme Court has cautioned against.” Id. Portalp Int’l SAS v. Zuloaga, No. 2D15-1676; 2015 Fla. App. LEXIS 18936; 40 FLW D 2791 (Fla. 2d DCA Dec, 18, 2015) represents an awakening attitude by courts that the process of obtaining justice for injured clients harmed by foreign corporations and nationals must be more efficient and streamlined. There remain many other challenges to trial lawyers litigating cases against Asian, European, and South American defendants, including obtaining discovery and executing on judgments once the case is tried. However, the nightmare of having to serve process under the Hague Convention has faded substantially, allowing trial lawyers to more easily achieve our dreams of enforcing our clients’ rights. CASE SUMMARIES IN CIVIL PROCEDURE Judgment Based upon Defective Complaint Is Voidable but Not Void. The Florida Supreme Court held that a judgment by default based upon a complaint that fails to state a cause of action was merely voidable, but not void. In Bank of New York Mellon v. Condo. Assn of La Mer Estates, Inc., 175 So.3d 282 (Fla. 2015), the Court held that where the defendant was on notice of the defect in the complaint within the time to challenge the default judgment in the trial court or on appeal, it was error for the court to consider a challenge to the judgment under Fla. R. Civ. P. 1.540(b) filed more than one year after the judgment. In arriving at its holding, the Supreme Court cited Fla. R. Civ. P. 1.140 (b)(h)(1)(2). Those provisions require that the defense of failure to state a cause of action must be raised at trial and/or in the pleadings, or the defense is waived. Void Order May Be Challenged for First Time on Appeal. It is an old maxim that a court’s lack of subject matter jurisdiction can be raised at any time, and that maxim was honored by the court in Musa v. Wells Fargo Delaware Trust Co., No. 1D15-0937; 2015 Fla. App. LEXIS 19559 (Fla. 1st DCA 12-31-15). In Musa, the trial court lost jurisdiction upon the filing of a notice of removal by the defendant. Therefore, it was error to enter a judgment after removal, and the judgment was void. It is the act of filing the notice of removal that deprives the state court of jurisdiction. “After a notice of removal is

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filed in federal court, notice thereof is given to adverse parties, and a copy of the notice of removal is filed in state court, removal is effected and ‘the State Court shall proceed no further unless and until the case is remanded.’” Id. at * 23 (citing 28 U.S.C. §1446 (e)). Failure to Receive Copy of Final Judgment Necessitates Re-Starting of Appellate Deadline. Noting that “multiple courts, including this one, have routinely held that a trial court’s or clerk’s failure to serve the parties with an order or judgment warrants relief under Rule 1.540(b), ‘even if for no other purpose then to reenter the order with a fresh date to preserve the right to appeal,’” the Second District Court of Appeal reversed the trial court’s denial of a motion to vacate the order denying relief. The court noted that the prevailing party “did not file or offer any countervailing evidence or submit any pleading containing any facts that contradicted the assertion of counsel … that she was not served with the order denying rehearing … [and stated that] based on these undisputed facts, we are somewhat surprised that counsel … did not simply stipulate to the entry of a new order on the motion for rehearing for purposes of preserving the Trust’s appellate rights. Given the facts here, this would have been the professional and civil thing to do.” Leichester Trust, No. 1920 v. Fanny Mae, No. 2D15-1390; 2015 Fla. App. LEXIS 19161 at * 6-8 & n.2 (Fla. 2d DCA 12-23-15). Temporary Injunction Must Contain Factual Findings on Each Element. The Fifth District Court of Appeal reversed a temporary injunction where in the Appellants were temporarily enjoined from violating their non-compete non-disclosure, and non-solicitation agreements. In Dickerson v. Senior Home Care, Inc., No. 5D14-4123; 2015 Fla. App. LEXIS 18956; 40 FLW D2804 (Fla. 5th DCA 12-1615), the court held that “the trial court’s order does not comply with Rule 1.610(c) because it simply enjoins appellants from ‘violating their non-compete, non-disclosure, non-solicitation agreements.’” Id. at *1. The court held that a “trial court must delineate factual findings to support each of the four criteria that must be established in order to issue the temporary injunction: (1) the likelihood of irreparable harm; (2) the like of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) considerations of the public interest.” Id. at 1-2. Rule Requiring Timely Denials of Requests for Admissions Remains Meaningless. In yet another case refusing to enforce the provision of Fla. R. Civ. P. 1.370(a) providing that “[t]he matter is admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within 30 days after service of the request.” The Third District Court of Appeal reversed a judgment based upon the admission, which resulted from the failure to timely respond. In PennyMac Corp. v. LaBeau, No. 3D15-557; 2015 Fla. App. LEXIS 18777 (Fla. 3d DCA 12-16-15), the court essentially held that admissions resulting from failure to respond are never binding absent a showing of prejudice by the requesting party. Trial lawyers attempting to enforce such technical admissions should keep in mind the court’s statement explaining the basis for the reversal of the trial court: “LaBeau and Passariello did not claim they were surprised, misled, or procedurally prejudiced by PennyMac’s request for relief [from the admissions].” Id. at *7.

Defense Counsel’s Filing of A Notice Of Appearance Did Not Waive Objection To Service Of Process. In Mesa v. The Bank of New York, No. 3D14-762; 2015 Fla. App. LEXIS 18760; 40 FLW D2788 (Fla. 3d 12-16-15), the court reversed the trial judge’s order denying the defendant’s motion to quash service of process and to vacate a default judgment. The trial court had held that the defendant’s attorney’s filing of a notice of appearance prior to filing a motion to quash or responsive pleading waived any objection to the sufficiency of service of process. The court held that the filing of a notice of appearance did not constitute a “general appearance” for purposes of waiving an objection to the sufficiency of service. Filing of Any Paper Within Ten-Month Period Renders FWOP Notice Erroneous. In HSBC Bank USA, N.A. v. Cochrane, No.4D15-1530; 2015 Fla. App. LEXIS 18412; 40 FLW D2715 (Fla. 4th DCA 12-9-15), the court held that the trial court erred in issuing a notice that the action would be dismissed for want of prosecution because, within the ten month period preceding the notice, the plaintiff had filed a motion for mediation. The court reaffirmed the modern rule that the filing of any paper within the ten month period renders erroneous the issuance of a FWOP notice. Trial Court Erred in Weighing Plaintiff’s Evidence on Motion for Involuntary Dismissal. In Luciani v. Nealon, No. 5D14-2118; 2015 Fla. App. LEXIS 18126; 40 FLW D2697 (Fla. 5th DCA 12-4-15), the court held that the trial court should not have granted the defendant’s motion for involuntary dismissal under Fla. R. Civ. P. 1.420(b) at the close of the plaintiff’s case. Although the case was tried without a jury, the court in reversing the involuntary dismissal held that “it is clear from the record that the trial court improperly weighed the evidence and determined that Appellant had not met his evidentiary burden of proof on any of his causes of action.” Id. at *3. Somewhat confusingly, however, the court in the Luciani case affirmed the judgment in favor of the defendant under the “tipsy coachman” doctrine. “Having carefully reviewed the entire record and having considered the evidence presented in the light most favorable to Appellant, as the non-moving party, we conclude that Appellant failed to establish a prima facie case as to his causes of action for fraud, undue influence and lack of testamentary capacity.” Id. at *4. That is all for this issue of the Journal on the topic of Civil Procedure. In closing let me remind our readers of the admonition given by my professor on the subject many years ago: “Read the Rules; and then read them again.” 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. | January/February 2016 | 45


LAWYERS “TESTIFYING” IN CLOSING ARGUMENT by Philip M. Burlington, Barbara Green and Chris Carlyle


n courtrooms, as in life, there is always the dangerous temptation to say what we really think. However, that is not the function of a lawyer in closing argument. Closing arguments must be limited to discussion of the evidence, reasonable inferences therefrom, and the application of the relevant law to those facts. Murphy v. International Robotics Systems, Inc., 766 So.2d 1010, 1028 (Fla. 2000). Attorneys are afforded great latitude in their presentations, and zealous advocacy is permitted, see Brumage v. Plummer, 502 So.2d 966 (Fla. 3d DCA 1987). However, it is improper for a lawyer to assert personal knowledge of the facts of the case or to “testify” in closing argument about facts that were not presented by the evidence. The

boundary between that and proper argument is sometimes difficult to perceive and, not surprisingly, extensive case law has arisen addressing this issue. The prohibition against lawyers stating their supposed knowledge of the facts of the case in closing argument is so strong that it is incorporated in an ethical rule, Rules Regulating the Florida Bar 4-3.4:

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A lawyer must not…

(e) 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 the facts in issue except when testifying as a witness, or state a personal opinion as to the justness of the cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused. [E.S.]. The rationale for this prohibition is two-fold. First, the rule prevents lawyers from placing their own credibility in a case, and second, it limits the possibility that a jury may decide a case based on non-record evidence. Murphy, supra, 766 So.2d at 1028. There is also the significant problem that lawyers “testifying” in closing argument are not under oath or subject to cross-examination. The seminal case on this issue is Tampa Transit Lines, Inc. v. Corbin, 62 So.2d 10 (Fla. 1952), which involved a passenger injured on a city bus. In his closing argument, plaintiff’s counsel made many statements found objectionable by the court, including that he had known the plaintiff for many years and “that she was a well and healthy woman up until the time of the accident” (62 So.2d at 12). He also told the jury that the bus company employed attorneys on retainer to fight all claims regardless of their merit that the bus company was spending large sums of money to defend the suit, and that officers of the bus company received care from the finest clinics in the country when they were injured. Id. On appeal, the Supreme Court reversed the judgment in favor of the plaintiff based solely on the comments summarized above, stating (Id.):

Part of the statements made by the attorney for the appellees amounted to testimony given by such attorney, out of order, and when he was not under oath. The other remarks were highly prejudicial. *** Verdicts rendered by a jury, after having heard such incompetent testimony from an attorney and such highly prejudicial remarks, under the circumstances as shown by this case, cannot be permitted to stand. Another glaring example of this impropriety occurred in Bloch v. Addis, 439 So.2d 539 (Fla. 3d DCA 1986), a medical malpractice action. There, plaintiff’s counsel contentiously cross-examined one of defendant’s experts about a phone conversation that had occurred between them. Then, in closing argument, plaintiff’s counsel proceeded to tell the jury that the doctor’s testimony about that conversation was false and that he had told the lawyer something different than what he said in court. Plaintiff’s counsel also claimed to know that the expert’s examination notes were not contemporaneously written, as the expert had testified, but rather were written at the time of trial. No evidence admitted at trial supported either of those assertions. In Bloch, the judgment in favor of the plaintiff was reversed by the Third District on the basis that it was improper for plaintiff’s counsel to act as an impeaching witness in his closing argument. The court noted that it was unusual for an attorney to be permitted to testify on behalf of his client, but also that by doing so in closing argument he avoided taking an oath or subjecting himself to cross-examination. Based on | January/February 2016 | 47


that closing argument impropriety, and other related prejudicial comments, the Third District reversed the judgment. Improper “testimony” in a closing argument can also arise from comments which imply knowledge of facts which are not supported by the evidence. For example, in Wall v. Costco Wholesale Corp., 857 So.2d 975 (Fla. 3d DCA 2003), defense counsel repeatedly referenced the fact that the plaintiffs’ daughter had not testified and suggested that the reason for that was that she would have given testimony harmful to the plaintiffs. There was no evidence supporting that implication (and it was apparently false). The Third District reversed for a new trial based on that comment, in conjunction with other improprieties in defendant’s closing argument. See also Johnnides v. Amoco Oil Co., Inc., 778 So.2d 443 (Fla. 3d DCA 2001) (judgment reversed where defense counsel told the jury in closing argument about a supposed conversation between plaintiff’s counsel and his expert regarding how they would confuse the jury into awarding the plaintiff money). Similarly, it is inappropriate for an attorney in closing argument to tell the jury what a witness would have said if he or she had testified at trial. F.J.W. Enterprises, Inc. v. Johnson, 746 So.2d 1145 (Fla. 5th DCA 1999), involved an incident in a parking lot in which a man was shot; and his wife was an eyewitness. However, she did not testify at trial, and defense counsel made a point about that in his closing argument, to which plaintiff’s counsel responded that her deposition had been taken and she said the same thing her husband said, He [defense counsel] knows it. He deposed her” (746 So.2d at 1147). The court noted that those statements were “highly inappropriate” and granted a new trial based on those and other improper statements. See also Carnival Cruise Lines, Inc. v. Rosania, 546 So.2d 736, 737 n.1 (Fla. 3d DCA 1989). The prohibition against a lawyer providing testimony also extends to “facts” relating to the credibility of a witness, including any class of witnesses for which the lawyer may express supposed knowledge. For example, disparaging comments by defense counsel regarding the practices or tendencies of chiropractors has been found to be an impropriety which can warrant a new trial, if sufficiently prejudicial or compounded by other improper comments. See Silva v. Nightingale, 619 So.2d 4 (Fla. 5th DCA 1993); Dutcher v. Allstate Ins. Co., 655 So.2d 1217 (Fla. 4th DCA 1995). Disparaging comments about particular experts based on supposed knowledge has been a frequent ground for reversal when the comments are unsupported by any evidence admitted at trial. For example, a statement that a particular expert testified “as usual” that the plaintiff had a permanent injury, was deemed improper in Schubert v. Allstate Ins. Co., 603 So.2d 554 (Fla. 5th DCA 1992). Additionally, asserting in closing argument that there is a well-established network of doctors who work with plaintiffs to manufacture cases, or that a particular expert engaged in such conduct in the case, is improper when there is an absence of evidence to support the accusation. See Venning v. Roe, 616 So.2d 604 (Fla. 2d DCA 1993); Rosario-Paredes v. J.C. Wrecker Serv., 975 So.2d 1205 (Fla. 5th DCA 2008).

In Mohammad v. Toys “R” Us, Inc., 668 So.2d 254 (Fla. 1st DCA 1996), the defense lawyer denigrated plaintiff’s expert in numerous ways, including telling the jury that the expert did not appear live at the trial because his opinions were so ludicrous, only his deposition was read. The First District specifically ruled that those comments violated Rule 4-3.4(e). A lawyer’s statement that he does not believe the testimony of the opposing party or a lay witness is improper. See Silva, supra, 619 So.2d at 5. This extends to suggesting to the jury that the opposing party wanted to admit fault but that “his lawyers are keeping him from it.” Riley v. Willis, 585 So.2d 1024, 1028 (Fla. 5th DCA 1991). Lawyers “testimony” in closing argument regarding what occurred during the litigation of the case is also improper. For example, discovery misconduct is not admissible in a jury trial, absent unusual circumstances. See Amlan, Inc. v. Detroit Diesel Corp., 651 So.2d 701 (Fla. 4th DCA 1995). In Emerson Electric Co. v. Garcia, 623 So.2d 523 (Fla. 3d DCA 1993), no such evidence was admitted at trial, however, plaintiff’s counsel argued in closing that defense counsel had engaged in discovery misconduct by not fully producing records. The court found that those comments were improper and, in light of additional improprieties, justified a new trial. See also George v. Mann, 622 So.2d 151 (Fla. 3d DCA 1993) (defense counsel’s accusation in closing argument that plaintiff had violated discovery orders, in conjunction with other improprieties, justified a new trial). While it should go without saying, unfortunately it has taken case law to establish that it is inappropriate for counsel in closing argument to “testify” regarding evidence which was excluded at trial. For example, in City of Miami v. Veargis, 311 So.2d 693 (Fla. 3d DCA 1975), a father brought an action against a municipality arising out of the fatal shooting of his son. In addition to inappropriately referring to the decedent as a “fleeing felon,” defense counsel openly displayed an alleged packet of marijuana to the jury in closing argument, despite a prior ruling that that evidence was inadmissible. Defense counsel also directed the jury’s attention to numerous unknown articles and pictures on display at the defense table, which had never been introduced into evidence. The court found that that misconduct justified a new trial and the Third District affirmed that decision. See also Maercks v. Birchansky, 549 So.2d 199 (Fla. 3d DCA 1989) (impermissible for plaintiff’s counsel to display to jury in closing argument a plastic bag filled with cancelled checks, when those checks had been excluded from evidence). There was a time it appeared that an attorney could not call a witness a liar in closing argument because it was perceived to be an expression of personal belief regarding the credibility of a witness. For example, in Kaas v. Atlas Chemical Co., 623 So.2d 525 (Fla. 3d DCA 1993), plaintiff’s counsel argued in his closing that the defendant’s position was “ridiculous” and that the defendant’s expert was someone “who does hate me and who I did call a liar.” Id. Plaintiff’s counsel then continued to call the expert a liar in his closing argument, and ultimately the trial court granted a new trial based on those comments. The Third District affirmed, noting that the lawyer’s personal beliefs concerning the credibility of the witness were neither relevant nor permitted, and

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that there was no evidence to support the attorney’s assertion that the expert “hates my guts” (623 So.2d at 526 n.1). However, in Forman v. Wallshein, 671 So.2d 872 (Fla. 3d DCA 1996), the Third District rejected the contention that Kaas stood for the proposition that a lawyer could never call a witness a “liar” in closing argument. Forman held that the propriety of such a characterization depended on the evidence at trial, noting the Florida Supreme Court’s decision in Craig v. State, 510 So.2d 857, 865 (Fla. 1987), where the Court had stated: Appellant argues that the prosecutor improperly made repeated references to defendant’s testimony as being untruthful and to the defendant himself as a “liar.” It may be true that the prosecutor used language that was somewhat intemperate but we do not believe he exceeded the bounds of proper argument in view of the evidence. Subsequent to Forman, the Florida Supreme Court reiterated that conclusion as to civil cases in Murphy, supra, where it stated “it is not improper for counsel to state during closing argument that a witness ‘lied’ or is a ‘liar,’ provided such characterizations are supported by the record” (766 So.2d at 1028). There has not been a clear delineation of the quantum or quality of evidence needed to justify the use of the term “liar,” but the standard does not appear to be onerous. See Benjamin v. Diel, 831 So.2d 1227 (Fla. 4th DCA 2002) (use of term “liar” could have been justified by inconsistencies in plaintiff’s testimony, even though he claimed to have explained them).

While Florida courts have been diligent in enforcing the prohibition codified in Rule 4-3.4(e), they have avoided a literal application of the principle when an attorney utilizes figures of speech such as “I think” or “I believe” in closing argument. In Forman, supra, the court noted that while such language may suggest a statement of personal belief by the lawyer, if it is clear that its use was merely a figure of speech, it should not necessarily be construed as an expression of personal knowledge or opinion (671 So.2d at 875). The Florida Supreme Court subsequently agreed with that position in Murphy, supra, 766 So.2d at 1029. Therefore, while those decisions suggest that the use of expressions like “I think” or “I believe” should be avoided in closing argument, their use does not require the conclusion that a lawyer has engaged in impropriety. In conclusion, attorneys should be careful in closing argument not to let their zealous advocacy appear to express personal opinions regarding the facts or the credibility of witnesses. Attorneys should also avoid explicit statements regarding their belief in the justness of their client’s cause and, in any event, that should be implicit in the diligence and enthusiasm you demonstrate in your presentation of the case. The prohibition against lawyers “testifying” in closing argument does not mean that a witness cannot be called a “liar” if the evidence supports that conclusion. And, if phrases such as “I think” or “I believe” are inadvertently utilized, that should not necessarily render the argument improper.

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he Florida Supreme Court recently adopted numerous changes to the Florida Rules of Appellate The by Practice. Rebecca changes range from the technical to the more substantive. This article outlines the more significant changes, with tips on how those changes may apply to your practice.

Rule 9.020 – Rendition (of an Order). Previously, the filing of a notice of appeal resulted in the abandonment of any pending post-judgment motions (such as an authorized and timely motion for rehearing, to alter or amend, or for judgment in accordance with a prior motion for directed verdict). New Rule 9.020(i), effective January 1, 2015, now allows the appeal to be held in abeyance until the filing of a signed, written order disposing of the last such post-judgment motion. See In re Amendments to Fla. R. Civ. P., So. 3d , 39 FLW S665, 2014 WL 5714099, at *4 (Fla. Nov. 6, 2014). Attorneys and parties filing a notice of appeal should inform the appellate court of any motion pending in the trial court that would postpone rendition. Likewise, attorneys and parties should inform the appellate court when the motion has been decided, by filing a notice of disposition and a copy of the lower tribunal’s signed, written order. E.g., April 10, 2015 Notice: Informing the Appellate Court of Pending Motions Postponing Rendition at Time of Filing the Notice of Appeal, 2%CL%2PENDING%20MOT%20-%SIGNED.pdf Consistent with the changes to Rule 9.020(i), amended Rule 9.110(l) recognizes that the lower tribunal retains jurisdiction to render a final order. The appellate court, in its discretion, may grant additional time for the parties to obtain a final order from the lower tribunal. Fla. R. App. P. 9.110(l). According to the Appellate Court Rules Committee, this amendment clarifies that “it is neither necessary nor appropriate to request a relinquishment of jurisdiction from the [appellate] court to enable the lower tribunal to render a final order.” In re Amendments to Fla. R. App. P., 2014 WL 5714099, at *7. Rule 9.100 – Original Proceedings. Rule 9.100 governs original proceedings before the appellate court, including petitions for writ

of certiorari, mandamus, and prohibition. Officials responsible for

issuing ordersCreed subject to review under Rule 9.100 – including trial court Bowen

judges, individual members of agencies, boards, or local government commissions, and administrative law judges – should not be named as respondents to any petition. See Fla. R. App. P. 9.100(b)(3). A copy of the petition, however, should be served on the official who issued the underlying order. Amended Rule 9.100(h) clarifies that the appellate court may issue an order directing the respondent to show cause why relief should not be granted or direct the respondent to file a response to the petition. In prohibition proceedings, however, only the issuance of an order to show cause will stay additional proceedings in the lower tribunal. In re Amendments to Fla. R. App. P., 2014 WL 5714099, at *5. Rule 9.110 – Review of Final Orders. Rule 9.110(k) already allowed for review of partial final judgments, whether immediately (“on appeal from the partial final judgment”) or at the conclusion of the case (“on appeal from the final judgment in the entire case”). Note, however, that if a partial final judgment “totally disposes of an entire case as to any party” – in other words, if the partial final judgment dismisses all claims against any one defendant – that order “must be appealed within 30 days of rendition.” Fla. R. App. P. 9.110(k). New Rule 9.110(k) clarifies the definition of a “partial final judgment.” The Rule provides that a partial final judgment (“other than one that disposes of an entire case as to any party”) is one that “disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims.” See In re Amendments to Fla. R. App. P., 2014 WL 5714099, at *6. Rule 9.130 – Appealable Non-Final Orders. Rule 9.130 governs the appeals of certain interlocutory, or non-final, orders. Only those specific categories of non-final orders may be appealed. See, e.g., Fla. R. App. P. 9.130(a)(3). The language of Rule 9.130 was amended to clarify certain language, to authorize the filing of a cross-appeal, and to add two new categories of appealable non-final orders.

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For instance, paragraph (a)(4) of the Rule was changed to clarify that an order disposing of a motion that suspends rendition is “not separately reviewable from a review of the final order.” As the Committee Notes explain, an order disposing of a motion that suspends rendition – like an order denying rehearing – may be reviewed, “but only in conjunction with, and as a part of, the review of the final order.” Fla. R. App. P. 9.130 committee notes (2014 amendment); 2014 WL 5714099, at *8. Be careful, then, that if you decide to appeal an order denying rehearing (or order denying a motion for new trial, to alter or amend, or for JNOV), you appeal that order together with the final judgment itself. If an appellant seeks review only of a post-judgment order, the appeal may be dismissed for lack of jurisdiction. E.g., Ricardo v. Wells Fargo Bank Nat’l Ass’n, 166 So. 3d 967, 968 (Fla. 3d DCA 2015). And, of course, remember that a motion for rehearing or reconsideration of any non-final order does not toll the time for filing an appeal. See, e.g., Lovelace v. Lovelace, 124 So. 3d 447 (Fla. 1st DCA 2013); see also Fla. R. App. P. 9.020(i) (defining “rendition” of final orders). The amendments to Rule 9.130 also deleted additional language from paragraph (a)(4). No longer does the Rule provide that “[o]ther non-final orders entered after final order on authorized motions are reviewable” under Rule 9.130. See Fla. R. App. P. 9.130 committee notes (2014 amendment); In re Amendments to Fla. R. App. P., 2014 WL 5714099, at *8. Non-final orders entered after a final order “are no more or less reviewable than the same type of order would be if issued before a final order.” 2014 WL 5714099, at *8. Consequently, to appeal a non-final order entered after a final order, a party must either await a subsequent final order, or determine whether that non-final order is otherwise reviewable under another subsection of Rule 9.130. In other changes, Rule 9.130(3)(c)(vi) was amended to allow for the appeal of an order determining “whether to certify a class” – instead of an order determining “that a class should be certified.” And Rule 9.130(g) specifically authorizes the cross-appeal of interlocutory rulings otherwise appealable under paragraphs (a)(3) through (a)(5) of the Rule. The notice of cross-appeal of a non-final order, like that of a final order, should be served “within 10 days of service of the appellant’s timely filed notice of appeal or within the time prescribed for filing a notice of appeal, whichever is later.” Fla. R. App. P. 9.130(g); In re Amendments to Fla. R. App. P., 2014 WL 5714099, at *7. Lastly, Rule 9.130 creates two new categories of non-final, appealable orders, both related to the denial of a party’s right to seek immunity. Prompted by the Florida Supreme Court’s decision in Keck v. Eminisor, 104 So. 3d 359 (Fla. 2012), the Appellate Court Rules Committee proposed an amendment allowing for interlocutory review “where an individual defendant who claims immunity under [section] 768.28(9) (a) . . . is denied that immunity and the issue turns on a matter of law.” In re Amendments to Fla. R. App. P. 9.130, 151 So. 3d 1217 (Fla.

2014) (quoting Keck, 104 So. 3d at 369). The Rules Committee also proposed adding a new rule authorizing appeals from non-final orders determining, as a matter of law, that a party is not entitled to any immunity from suit. Id. at 1217. The Florida Supreme Court declined to adopt the broader language suggested by the Rules Committee, which would have authorized the review of any immunity from suit not otherwise addressed by the Rule. Id. Even so, Rule 9.130(a)(3)(C) now provides for the appealability of non-final orders determining: (x) that, as a matter of law, a party is not entitled to immunity under section 768.28(9), Florida Statutes; or (xi) that, as a matter of law, a party is not entitled to sovereign immunity. Fla. R. App. P. 9.130(a)(3)(C)(x), (xi). Rule 9.200 – The Record. In an effort to facilitate statewide electronic access to (non-confidential) court records, the Florida Supreme Court has enacted numerous changes to Rule 9.200. In re Amendments to Fla. R. App. P. 9.200, So. 3d , 40 FLW S635a, 2015 WL 7009490 (Fla. 11-12-15); In re Amendments to Fla. R. App. P. 9.200, 164 So. 3d 668, 670 (Fla. 2015). The entire record on appeal, except for the transcript of the trial, must be compiled by the lower tribunal clerk into a single PDF file. The clerk should include all filings in redacted form. Fla. R. App. P. 9.200(d)(1)(C) (effective January 5, 2016). The single PDF file must be text searchable, bookmarked, and paginated so that the page numbers displayed by the PDF reader exactly match the pagination of the record index. See Fla. R. App. P. 9.200(d)(1)(C)(i) – (iii); In re Amendments to Fla. R. App. P. 9.200, 2015 WL 7009490, at *4. The pagination should allow individuals using the PDF version of the record on appeal to “jump” directly to the relevant record pages, as cited in the briefs. 2015 WL 7009490, at *1. Because the electronic record must be consecutively numbered as a single PDF file, there is no longer any need to organize the record by volume. See In re Amendments to Fla. R. App. P. 9.200, 164 So. 3d at 672-73. The clerk must file the trial transcript separately, to be followed by a master trial index that includes the names of all witnesses and a list of all exhibits offered and introduced. New Rule 9.200(d)(2) specifies that the trial transcript must be converted into a second PDF file, which also must be text searchable and paginated to exactly match the pagination of the master trial index. See In re Amendments to Fla. R. App. P. 9.200, 2015 WL 7009490, at *3-*4; Fla. R. App. P. 9.200(d) (2) (effective January 5, 2016). Any supplement to the record on appeal, as permitted by the appellate court, should be submitted by the lower tribunal’s clerk as a separate PDF file. Although a separate PDF file, the supplement should be | January/February 2016 | 51


paginated consecutively from the original record, to be continued through each supplement. See 2015 WL 7009490, at *3; Fla. R. App. P. 9.200(d)(1)(B) (effective January 5, 2016). Even under the new Rule requiring electronic submission, the clerk of the lower tribunal still must serve the parties with a separate copy of the index to the record on appeal. See Fla. R. App. P. 9.200 committee notes (2015 amendment). Rule 9.210 – Briefs. New Rule 9.210 clarifies that the cover page, tables of contents and authorities, certificates of service and compliance, and the signature block for the brief ’s author are all excluded from the computation of pages in any brief. Fla. R. App. P. 9.210(a)(5) (E) (effective Oct. 1, 2015). All pages not excluded from the pagecount computation must be consecutively numbered. See id.; In re Amendments to Fla. R. App. P. 9.210, 173 So. 3d 953, 954 (Fla. 2015). Rule 9.210 no longer requires parties to refer to the appropriate volume and page of the record. Instead, citations may be simply to the relevant page of the record or trial transcript. See In re Amendments to Fla. R. App. P. 9.200, 2015 WL 7009490, at *4; Fla. R. App. P. 9.210(b)(3). And, in an effort to assist clerks with the scanning of pro se paper filings, the Florida Supreme Court adopted the recommendation of the Rules Committee that briefs filed in paper form “shall not be stapled or bound.” See In re Amendments to Fla. R. App. P. 9.210, 173 So. 3d at 953; Fla. R. App. P. 9.210(a)(3) (effective Oct. 1, 2015). Rule 9.320 – Oral Argument. In an appeal, a request for oral argument may now be made by either party no later than 10 days after the last brief is due to be served. Likewise, in proceedings initiated by the filing of a petition, the request for oral argument may be served by a party “not later than 10 days after the reply is due to be served.” Fla. R. App. P. 9.320(b); see In re Amendments to Fla. R. App. P., 2014 WL 5714099, at *17. Previously, the Rule required a party to file the request for oral argument together with that party’s last brief. For an appellee, then, that meant filing a request for oral argument together with the appellee’s answer brief. The new Rule allows an appellee to wait and see whether the appellant will request oral argument before deciding whether to file his own request.

litigation on any settled matters – at least until the appellate court decides whether to recognize the dismissal. Fla. R. App. P. 9.350(d) committee note (2014 amendment); see In re Amendments to Fla. R. App. P., 2014 WL 5714099, at *19. Rule 9.400 – Costs and Attorney’s Fees. The definition of “taxable costs,” as set forth in paragraph (a) of Rule 9.400, has been amended to include the costs for preparation of “any hearing or trial transcripts necessary to determine the proceeding.” A motion seeking to recover taxable costs on appeal must be served in the lower tribunal no later than 45 days after rendition of the court’s order (e.g., the opinion). See Fla. R. App. P. 9.400(a). This is a change from the earlier Rule, which required service of the motion no later than 30 days after issuance of the mandate. See In re Amendments to Fla. R. App. P., 2014 WL 5714099, at *19. Rule 9.400(b) now specifically authorizes the filing of a motion for attorney’s fees in original proceedings. Fla. R. App. P. 9.400(b)(2). In original proceedings, just as in an appeal, the motion must state the grounds on which recovery is sought. The motion shall be served no later than “the time for service of the petitioner’s reply to the response to the petition.” Id. Rule 9.420 – Serving a Notice of Appeal. Generally, Rule 9.420 allows for service by e-mail, in accordance with the requirements of Florida Rule of Judicial Administration 2.516. One notable exception, however, is that the initial document filed in a proceeding under the appellate rules (like a notice of appeal, a petition for an original writ, or a notice to invoke jurisdiction) must be served both by e-mail and in paper form (whether by mail, hand delivery, or facsimile, as specified in Rule 2.516(b)(2)). See Fla. R. App. P. 9.420(1)(c). Conclusion. Recent significant amendments to the Florida Rules of Appellate Procedure reflect the intent of the Rules Committee (and, for that matter, the Florida Supreme Court) to clarify the Rules and avoid any confusion in the Rules’ interpretation. Especially in the wake of electronic filing, the recent amendments will assist attorneys, parties, court reporters, and clerks alike in navigating the appellate process.

Rule 9.350 – Dismissal. Paragraph (d) was added to clarify that the filing of a stipulation or notice of dismissal “automatically stays that portion of the proceedings for which a dismissal is being sought, pending further order of the court.” Fla. R. App. P. 9.350(d). The filing of a stipulation or notice of dismissal does not itself dismiss the case. With this amendment, however, the Rule does limit further

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Rebecca Bowen Creed

Rebecca Bowen Creed of Jacksonville, Florida, is a Florida Bar Board Certified Appellate Specialist. Her practice with Creed & Gowdy, P.A. is limited to appeals and trial support and encompasses a wide variety of substantive areas, including plaintiff’s personal injury and medical malpractice. She practices in all of Florida’s district courts of appeal, the Florida Supreme Court, and the Eleventh Circuit Court of Appeals. She received her J.D. with honors from the University of North Carolina at Chapel Hill in 1991. She is a Master in the First District Appellate American Inn of Court and is the current chair of the Appellate Section of the Florida Justice Association.




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Web: | January/February 2016 | 53


diversity by Ricardo Martinez-Cid


hose interested in issues of diversity should be familiar with the work of the Florida Supreme Court’s Standing Committee on Fairness and Diversity, currently chaired by the Honorable Scott Bernstein. Many attorneys practicing in Florida are unfamiliar with the Committee and the important work it has done and is doing in our State. The Committee’s goal is to help advance the Florida courts’ efforts to eliminate from all court operations bias based on any characteristic that is without legal relevance. The Florida Supreme Court has had some form of a committee on diversity issues for over 20 years, starting with a gender bias commission. The scope then expanded, first to include race, and later to encompass all types of diversity matters. Over the past 20 years, the Committee has been able to document bias occurring in the Florida court systems. On March 14, 2008, the Committee published a report entitled “Perceptions of Fairness in the Florida Courts.” The Report gathered information from survey responses from court participants throughout the State, anecdotal data from public hearings, and attorneys’ personal testimonies regarding their experiences in dealing with the courts. See the Report

on the Standing Committee’s webpage at administration-funding/court-administration/fairness-diversity.stml. After analyzing the information, the Committee realized it needed to develop a diversity education program for judges and court staff, and offered recommendations to the Florida Court Education Council (FCEC). The program and recommendations were subsequently adopted, and are now the standard for diversity training for members of the Florida judiciary. Judges now must attend a full day, stand-alone diversity training course within their first three years on the bench. And, all judges must maintain their continuing diversity education requirements by completing diversity training courses every three years. To date, more than 1,000 judges have completed the full day training program, including all judges from every level of the Florida court system: the Supreme Court, as well as county, circuit, and appellate courts. The mission has been expanded to include diversity training for court staff. Although there are no formal diversity education requirements for staff, hundreds of Florida court staff have received ongoing training that is recommended by the Committee.

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On July 8, 2014, Chief Justice Jorge Labarga issued Administrative Order No. AOSC14-45, charging the Committee with four tasks for the term ending June 30, 2016:

schools, and other partners, for the purpose of advancing fairness and diversity initiatives with the Florida justice system.

(1) Explore funding opportunities for fairness and diversity education programs, and work with the Florida Court Educational Council to identify the resources necessary to ensure that all judges and court staff are afforded the opportunity to attend a fairness and diversity education program; (2) Develop an educational campaign on implicit bias, which may include developing and publishing information about educational resources for judges and court staff on implicit bias; preparing guidance and model educational activities for judges and court staff about perspective-taking; and coordinating discussion groups, panels, presentations, or other awareness efforts about the role of implicit bias in decisions and actions; (3) Develop a best practices guide to provide practical advice and direction on the implementation of court diversity strategies and initiatives, which can serve as a resource for Florida’s trial and appellate courts; (4) Build upon the outreach efforts undertaken during the 20122014 term by continuing to collaborate with The Florida Bar, local bar associations, community organizations, Florida law

The Committee has made important strides in accomplishing these tasks. For example, Committee members have been developing a law student outreach program consisting of an hour-long, interactive program designed to engage law students about various diversity topics as they relate to the judicial system. The proposed program will include presentations on the Implicit Bias Assessment Test, disparities and perceptions of Florida’s judicial system, and discussions on the Rules of Professional Conduct of the Florida Bar, as well as local bar rules on civility and professionalism. The Committee will need the help of the FJA and other local voluntary bar associations to make this effort a success. The Committee is also finalizing a “Diversity Best Practices Guide” – a practical tool that can be used for recognizing and eliminating biased behaviors from court operations. For more information on the Standing Committee on Fairness and Diversity and to see previous Florida committee reports, previous Florida Bar studies, and national studies and articles on the subject of fairness and diversity, please visit administrationfunding/court administration/fairnessdiversity.stml. If you are interested in helping the Committee by sponsoring fairness and diversity education programs or otherwise, please let me know. | January/February 2016 | 55



For Young Attorneys to Avoid Being Out-Lawyered by the Enemy by Elizabeth Munro


xcuse me, Miss. Are you represented by an attorney? You should wait for him to get here before you go back to chambers.” As a twenty-six year old with a freshly printed bar card, it was certainly not the way I had expected my first or maybe second hearing to begin. With a red face, I explained that I was the attorney and I was waiting for my hearing. My opposing counsel (about thirty years my senior) tried not to laugh, but it was clear he was amused by the misunderstanding. After waiting ten minutes or so, we went back into the Judge’s chambers. I was obviously nervous. It didn’t help that the second we all sat down, my opposing counsel and the judge seemed to be friendly and knew each other very well. Great start, I thought, as I opened up my hearing notebook and reviewed my notes. I had spent maybe twenty minutes reviewing for this hearing when I probably should have reviewed the case law for an hour or so. The Judge, after sitting down asked “what a girl like me is doing in a place like this.” I smiled and I stuttered as I told him which motion we were here on. Rarely in law school did I ever get nervous, but I certainly was at this hearing. I sped through my argument anxiously, missing things I had intended to say. When I was finished, the judge stopped me and read my motion. The defense attorney argued his points fluidly, calmly and with ease. Luckily, the judge partially decided in my favor. It was a minor issue and a small hearing, but I felt pretty

defeated because I really thought I could’ve done better. As I reflected on the hearing, I thought, what did law school actually prepare me for? The answer to that has become abundantly clear as time has gone on. It didn’t prepare me for anything! Law school gave me the base knowledge of “law” and the tools to figure it out on my own. Sounds great in theory to just prepare and relax, right? Well, as a young attorney, it’s really not that easy. In the last few years, I’ve noted several mistakes that I’ve made and thought I would share for my fellow newbies. First and foremost: 1. DON’T GET BOGGED DOWN BY THE ENEMY ’S EXPERIENCE While I felt unprepared for the above-mentioned hearing, I had everything I needed to defeat the enemy except for one thing: confidence. Normally, like most attorneys, I don’t think I have a problem in the confidence department. However, on this day, I let my insecurities of being young and inexperienced get in my head and affect my performance. Did that defense lawyer even have a notebook or case law with him? No. I did though. I did my homework on the issue far before the hearing and reviewed it. The defense attorney got in my head without even trying, just by being calm and collected.

56 | January/February 2016 |

In a recent Titans of Trial Article, Dale Swope was asked what the best mental technique for young lawyers intimidated by hearings or trials against older, seasoned attorneys. Mr. Swope’s advice was to: “[t] ake the power of her fear away from her. Walk into chambers slower than you think you should. Speak slower than you think you should. Use small words and short sentences. Be respectful.” Mr. Swope also pointed out that those older attorneys are afraid too, but they’re afraid that we young lawyers, presumably being less busy, can prepare more and potentially have a better grasp of the facts.

able to begin developing my style as an attorney and case strategies from inception through trial.

I am certain that everyone has a story similar to mine where they went into a hearing and didn’t feel entirely comfortable with it and if you haven’t, you probably will. My intention at this early stage of my career is to prepare and “be the prodigy.”

I have found in my minimal time practicing that these lawyers are mostly in house counsel that have a heavy case load, but pay attention when it’s important. If you attend a hearing with one of these attorneys, note that they are on point, read up and seem like a completely different lawyer than the one you were hounding for verified answers a week ago. Depositions similarly seem procedural for them. They show up with information about claims your client never told you about and suddenly, you feel like the one who is unprepared. This happened to me once and I will (hopefully) not make the mistake of misjudging opposing counsel again. I now always expect the snake in the grass with all defense lawyers.

2. DON’T LET THE DEFENSE ATTORNEY “BULLY” YOU Certain defense attorneys that I have come across (who shall of course remain nameless) are bullies. They’re rude, they’re unprofessional and they’re like sharks that see you as prey. Almost all of the rules of professional conduct are out the window for these individuals. They know you’re a “baby lawyer” and they want to capitalize on it. These attorneys will cut you off in hearings, make frivolous objections to distract you during depositions, write you letters every other day pertaining to the same issue and use their brash attitudes to fire you up and make you angry. My first reaction with several of these defense attorneys was to give the nasty attitude right back to them. When I became this type of lawyer, it did two things: undermined my professionalism and intelligence level. I let them get under my skin. I was told by an attorney much wiser than I am, to do the exact opposite of what I was doing. Instead of battling them, kill them with kindness. When they interrupt you in a hearing, stay calm and let it happen. Let the judge see their insecurities with their arguments. Much to my surprise, the advice worked. The attorneys that were once rude, unprofessional and arrogant were now asking about my holiday plans and how my family was doing. We may not like each other in the slightest, but having a shred of respect for them professionally (or at least pretending to) seems to work for me. 3. DON’T BE AFRAID TO ASK FOR HELP Being an attorney is tough. Being a litigator and trial attorney is even more difficult. Luckily for the Plaintiff (baby) lawyers, we have a great support system. Through FJA we have some of the best trial attorneys in the country willing to answer questions. If you cannot figure something out on your own, ask for help. For me, it was important to have mentors. I was a very young attorney when I started managing Florida Vanguard Attorneys. At the time I came on board, all of the defense attorneys I was against were seasoned and practicing for at least fifteen to twenty years. As I learned the hard way, that kind of experience could not be taught overnight. Strategy for difficult cases cannot be taught overnight. I think that knowing you’re not coming out of law school as Dale Swope or Steve Yerrid is half the battle. We learn these techniques over time and can ask others for pointers along the way. Because of many of my mentors, I have been

4. DO NOT UNDERESTIMATE YOUR OPPONENT Every attorney probably has that defense lawyer that genuinely seems like he/she has no idea what is going on. They are always failing to provide you discovery, respond to emails and letters and getting trial, mediation and deposition dates is nearly impossible.

5. MAKE THE THREAT OF TRIAL, A REAL THREAT Some cases are not the greatest, but you took them on for a reason. You believe when your client says they are in pain and you want to help. Your goal, of course, is to be your client’s advocate and advisor and to make the insurance company wish they would have done the right thing, so a lawsuit is never filed. Increasingly, it seems to me that a lot of insurance companies are waiting until the eve of trial before they offer a real amount to the Plaintiff. By then, you’ve done your preparation, shelled out the price of a mid-sized Toyota for your experts and you’re ready to go. It seems appealing to avoid taking a gamble with a jury. If that happens, the insurance company once again wins at our client’s expense. I’m guilty of doing this too. There are no guarantees with a jury. You can’t promise your client will get a dime, but right then, the night before trial, you can get them something. Because the costs are so high, they would not net what they would have a month ago when you asked for this amount, but they get something. It’s a tough spot to be in, but what I have chosen to do is to set a date with my client. As of x day, if there are no offers above this amount, we send the checks to the experts and push forward. To the extent Defendant wants to settle at a later date, they will need to come to us with x amount. I hope to employ this strategy in the future to make the threat of trial, a real threat.

Elizabeth Munro

Ms. Munro is the managing attorney of Florida Vanguard Attorneys in Tampa. She attended Michigan State University for her undergraduate degree and Florida State University for her law degree. Florida Vanguard Attorneys specializes in personal injury and insurance bad faith litigation. . | January/February 2016 | 57


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C. Steven Yerrid

Mike Papantonio

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

The Yerrid Law Firm, P.A. Upgraded by Dale M. Swope

BENEFACTOR - $10,000

Thomas A. Culmo

Culmo Trial Attorneys Upgraded by Todd Jordan Michaels

Philip A. Gold

Gold & Gold, P.A. Upgraded by Todd Jordan Michaels

Jason F. Lamoureux

Holland & Lamoureux, P.A. Upgraded by Jason Mulholland

60 | January/February 2016 |

Robert W. Kelley

Kelley Uustal, PLC Recruited by Anthony Quackenbush

Stephen A. Marino, Jr.

Ver Ploeg & Lumpkin, P.A. Recruited by James W. Gustafson, Jr.

Manuel were recognized by the Daily Business Review as the Most Effective Lawyers in two separate categories – medical mal-

Sebastian Aristizabal

Lee H. Davis Manuel L. Dobrinsky Daniel D. Dolan, II Lee Davis Law, P.A. Dolan Dobrinsky Rosenblum, LLP Recruited by Jason F. Lamoureux Recruited by Stephen F. Cain

Manuel L. Dobrinsky

Best of the Best Trial Lawyers

Sebastian Aristizabal

PATRON - $5,000

practice and class actions are highly competitive an the diversity and experti these men have.” All three have respect gains and honors. Randy Rosenb “If I could chime in abo it’s only fair,” Dobrinsky j recently honored by our p tion to the American Boar cates. This is an invitation Asidehighly from their personalplaint achi experienced and praise, the three attorneys lawyers. Dan’s selection are wa give back to their community. Fro from our peers that he doe ing in feeding theour homeless to rea and from opponents th as strong his skills. to localjust churches andasother orga a lot about and thevast kin the attorneys haveDan dedicated person he is. ” of time and effort to give back. Aft a decade of service, Dobrinsky cently elected as treasurer for Daniel D. Dolan, II of Greater Miami. Dolan Dolan Dobrinsky Rosenblum,Services LLP committed to his law school St Recruited by Stephen F. Cain University where he serves on the advisors and dedicated the Ken Center for Student Affairs with t one-time donation by an alumn school’s history.

Sebastian Aristizabal

As established lawyers in their fields, all Daniel D. Dolan, II three attorneys have earned high honors and awards from their peers and even opVol. 5 No. 4 Attorney at Law Magazine® Greater M ponents along with hundreds of millions of dollars in recoveries for their clients. “Can I brag about my partners for a second?” Dolan asked. “Both Randy and Best of the Best Trial C. David Fonvielle Brett Alan Panter Randy Rosenblum David H. Goldby the Daily Busi- Lawyers Manuel were recognized Fonvielle, Lewis, Foote & Messer Panter, & Sampedro, P.A. Gold Gold, P.A. Dolan Dobrinsky Rosenblum, LLP AsPanter established lawyers in their fields, all ness Review as &the Most Effective Lawyers Upgraded by James W. Upgraded by Robert Mayer Upgraded by Todd Jordan Michaels three attorneys have earned highRecruited honors by Stephen F. Cain in two separate categories – medical malGustafson, Jr. Rubenstein and awards from their peers and even opponents along with hundreds of millions of dollars in recoveries for their clients. Randy R “Can I brag about my partners for a SPONSOR $3,000 second?” Dolan asked. “Both Randy and Manuel were recognized by the Daily Business Review as the Most Effective Lawyers in two separate categories – medical malAside from their person Andrei Antohi Philip Freidin Allen S. McConnaughhay and praise, the three attorn Fonvielle, Lewis, Foote & Messer Freidin, Brown & Rosenblum Fonvielle, Lewis, Foote & Messer give back to their commun Recruited by James W. Gustafson, Jr Recruited by James W. Gustafson, Jr. ing in feeding the homeless to local churches and othe John H. Piccin Gregory Scott Hagopian Michael T. Dolce Piccin Law Firm the attorneys have dedicate Gallagher & Hagopian, PL Cohen Milstein Sellers & Toll PLLC of time and effort to give ba Recruited by Bernard F. Walsh Recruited by Leslie Mitchell Kroeger a decade of service, Dob cently elected as treasure Brett M. Rosen Matthew K. Fenton Scott B. Kallins Services of Greater Miami Goldberg & Rosen, P.A. Wenzel Fenton Cabassa, P. A. Kallins, Little & Delgado, P. A. committed to his law sch Recruited by Fred A. Cunningham Recruited by Jason Mulholland Recruited by Bernard F. Walsh University where he serves advisors and dedicated th Manuel L. Dobrinsky Center for Student Affairs Philip S. Kinney Anthony Michael Stella John H. Foote Kinney & Sasso Lytal, Reiter, Smith, Ivey Fonvielle, Lewis, Foote & Messer one-time donation by an Recruited by Stephen Watrel & Fronrath, LLP school’s history. Recruited by James W. Gustafson, Jr. Recruited by Lake H. Lytal, III

Melton H. Little

Kallins, Little & Delgado, P. A. Recruited by Bernard F. Walsh

Vol. 5 No. 4 Attorney at Law Magazine® Gr

Manuel L. Dobrinsky | January/February 2016 | 61


Vidian Mallard

David J. Halberg, P.A. Recruited by John F. Romano

Daniel Murphy

Mallard & Sharp, P.A. Recruited by Damian B. Mallard

Richard Bodin Sharp

Shapiro, Goldman, Babboni & Walsh Recruited by Bernard F. Walsh

Michele Suzanne Stephan

Mallard & Sharp, P.A. Recruited by Damian B. Mallard

Shapiro, Goldman, Babboni & Walsh Recruited by Bernard F. Walsh

SOARING - $750

Riley H. Beam

Douglas R. Beam, P.A. Recruited by Eric Romano

Benjamin Russell

Associates and Bruce L. Scheiner, Attorneys For the Injured Recruited by Eric Romano


Recruited by Robert Mayer Rubenstein

Recruited by Robert Mayer Rubenstein


Recruited by William Thomas Cotterall

62 | January/February 2016 |


The 2016 FJA Young Lawyers Section and Women’s Caucus Lobby Days FJA Young Lawyers and Women's Caucus members experienced the legislative process first-hand while in Tallahassee for Lobby Days. Members participated in the legislative strategy sessions, met with legislators and watched the discussion of bills of interest in committee meetings.

FJA Volunteer Lobbying FJA is very appreciative of the following leaders and members who have come to Tallahassee to assist in our lobbying efforts. These members have taken time away from their practices, their clients and their families to help preserve the civil justice system in Florida. The individual expertise of our members and their client stories are powerful when lobbying legislators or testifying before a committee. The FJA remains strong from your dedication and support!

FJA’s Volunteer Lobbyists! ( As of Feb 5, 2016) President Todd Copeland President Elect Jimmy Gustafson Treasurer Dale Swope Secretary Trey Lytal Executive Committee Member Laurie Briggs Executive Committee Member Tiffany Faddis Executive Committee Member Leslie Kroeger Executive Committee Member Chris Ligori Executive Committee Member Eric Romano Past President Paul Anderson Past President Gary Farmer Past President Troy Rafferty Past President Fred Cunningham Past President Zander Clem Past President Rich Newsome Past President Tom Edwards Vanessa Brice, Young Lawyers Chair Jonathan Gilbert, Young Lawyers Chair-Elect Beth Finizio, Women’s Caucus Chair

Heather Barnes David Caldevilla Steve Cain Harvey Cohen Bill Cotterall Clif Curry David Dismuke Kim Driggers Amanda Dunn Brenda Fulmer Eric Garmon Jeff Garvin Guy Gilbert Erin Grall Daniel Gutierrez Jaeson Homola Karla Hart Pete Hunt Lee Jacobson Steve Jaffe

Leslie Jean-Bart Nicholas Johnson Michael Kalil Jason Lamoureux Damian Mallard Jason Mulholland Elizabeth Munro John Murrow Stephen Oakley Cassidy Perdue Matthew Posgay Kellye Shoemaker Kerri Smith Kimberly Stewart Aaron Swift Kim Syfrett Waylon Thompson Jim Vickaryous Nicole Vinson Greg Yaffa


Join The Movement: FJA Law School Outreach Florida Justice Association attorneys reach out to law students across the state to share the FJA mission and valuable information about finding and securing jobs after law school. FJA members are proud of what they do and honored to share this important message with the next generation of lawyers. Join us! February 10 – Cooley Law School, Tampa February 25 – Florida International University Law School, Miami

FJA Diversity Committee Joins Public Justice To Host AAJ Minority Caucus Reception For the first time, FJA is partnering with AAJ’s Minority Caucus and Public Justice to host a reception during AAJ’s 2016 Winter Convention. FJA is excited to be a part of this historic event in our backyard. We look forward to seeing many of you at this great reception. Tuesday, February 29, 6 – 7:30 pm Location: Boca Raton Resort & Club



Check out the legislative team in action and what it’s like to attend lobby days in Tallahassee. Subscribe to our YouTube channel for video updates.

Index Appeals, Rules, discussion and analysis of recent changes to Fla.R.App.P. ...50 Arbitration, medical malpractice caps on damages...34 Attorneys charging lien, error to grant motion to strike on the merits without an evidentiary hearing…14 fees, property insurance claim, multiplier awarded, factors discussed…16, 23 fees, proposal for settlement, validity of proposal where it fails to state

whether it includes a claim for fees...20 fees, public records requests to state agencies, service of pleading claiming fees on Department of Financial Services is condition precedent to recovery...16 fees, statutory prevailing party fees, fees also awardable in contempt action to enforce the original decree...10 Auto PIP, no good cause for disclosure of medical records unrelated to claim...20 PIP, timely submitted bill for ER services is subject to deductibles in

64 | January/February 2016 |


insurance contract...20 Closing Argument, testimony by lawyer in closing, discussion and practice tips...46 Costs, taxable, error to award costs for “real-time” court reporting, overhead expenses, and objected-to expert witness fees without competent testimony of reasonableness and necessity…13 Damages, additur or remittitur, specific findings related to statutory findings required...20 Diversity, Florida Supreme Court’s Standing Committee on Fairness and Diversity, overview...54 Evidence attorney’s fee hearing, attorney performing work need not testify...41 business records exception, summary of requirements ...41 Daubert standard for admissibility...35 Daubert, 1st DCA opinion invites constitutional challenge...40 law enforcement citation for violation of Coast Guard regulation, plaintiff did not open door by arguing that defendant violated regulation…14, 41 subsequent incident, technically material and relevant but probative value outweighs potential prejudice...21 voice recognition testimony, factors relating to admissibility...41 Immunity, litigation privilege, cause of action for malicious prosecution not barred where all elements are present...10 Insurance bad faith, 11th Cir. opinion by visiting judge from 6th Cir, summary judgment for insurer reversed...19 bad faith, 11th Cir., insurer has no duty to enter into Cunningham agreement...18, 24 bad faith, modification of release was constituted rejection of offer...19 homeowner’s, error to abate insured’s breach of contract action where contract had option to repair or make cash payment...22 property, policy did not provide coverage for undamaged portions of property for purpose of achieving aesthetic uniformity with repaired portions...23 Judges certification of need for additional trial court judges…10 discipline, removal from office for “appalling behavior” and “grievous misconduct”…10 disqualification, counsel’s significant involvement in judge’s ongoing re-election campaign…12 disqualification, judge may not refute charges of bias in ruling on motion to disqualify…16 Jurisdiction admiralty, passenger’s injury that occurred while disembarking from cruise ship satisfied test for federal admiralty jurisdiction…12 service, article 10(a) of the Hague Convention permits service by mail…14 service, article 10(a) of the Hague Convention permits service by mail, discussion and analysis...42 Legislature 2016 Regular Session...14 2016 Session, FJA Women’s Caucus and Young Lawyers Section participate in lobby days at the Capitol...6 Medicaid, lien determination, allocation from self-funded ERISA plan settlement not to be considered as part of medical expenses…16 Medical Malpractice caps on damages, constitutionality...34

expert testimony, admissibility under Daubert ...35 Medicaid future benefits, admissibility...34 President’s Message...5 Procedure appeals, failure to receive copy of final judgment...45 appeals, void order may be challenged for first time on appeal...44 denials of requests for admissions, courts failing to enforce failure to timely respond...45 dismissal for failure to prosecute, filing of motion to mediate within ten-month period avoids dismissal...45 dismissal, error for trial court to weigh evidence on motion for dismissal...45 judgments, judgment based upon defective complaint voidable but not void...44 service, filing notice of appearance does not waive objection to sufficiency of service...45 temporary injunction, factual findings on each element required...45 Products Liability, Dupont C-8 used in manufacture of Teflon, deadly world-wide contamination...28 Sovereign Immunity, home venue privilege, joint tortfeasor exception inapplicable to vicariously liable defendants…16 Statute of Limitations, equitable tolling, ignorance of legal rights does not excuse failure to timely file…12 Suicide, mentally and physically impaired bank customer whose loan was denied, bank had no special relationship with customer and no duty to protect from self-inflicted injury…10 Summary Judgment, material issue of fact, inadmissible speculative lay opinion expressed in deposition testimony insufficient to create material issue of fact…13 Witnesses reliability of eyewitnesses, expert testimony may be permitted...41 sequestration, discussion of rule and practice tips...38 undisclosed, failure to consider Binger factors, including prejudice to other party, in dismissing action...40 Workers’ Compensation appellate attorney fees waiver under F.S. §440.34(5), where appellee’s appellate counsel was justified in undertaking typical appellate tasks that required the expenditure of attorney time, a fee was owed by the E/C...37 costs payable by E/C and jurisdiction of the JCC, parties may “stipulate to the payment of attorney’s fees and costs,” with no requirement that the agreed‑upon costs be justified or detailed as such matters are governed by the law of contracts and settlement, with no specialized rules requiring JCC approval...36 prevailing party costs, prevailing party costs are awardable under F.S. §440.34(3) and are available to the party that prevails “in any proceedings”, which here were initiated with a PFB...36 Young Lawyers FJA young lawyers carry on the legacy of Mickey Smiley...7 practice tips, avoid being out-lawyered by the enemy...56 | January/February 2016 | 65


Advertiser’s Index Accident Reconstruction Robson Forensic ......................................................................... 35 ADR Services Upchurch, Watson, White & Max.............................................. inside back cover Attorney Advertising Cohen Milstein........................................................................... 11 Hickey Law Firm........................................................................ 53 Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor........... 55 Searcy, Denney, Scarola, Barnhart & Shipley............................... 27 Steve Watrel, P.A......................................................................... 37 Banking Esquire Bank............................................................................... 49 Books Trial Guides................................................................................ 33

Expert Witness & Wealth Management Charles W. Ranson Consulting, LLC.............................................13 Litigation Funding Fast Funds, Inc............................................................................... 21 Wingspan Investment Management, L.P........................................ 41 Rehabilitation Services NeuLife Rehabilitation................................................................... 15 Settlement Services Garretson Resolution Group.............................................................. Back Cover NFP Structured Settlements .......................................................... 17 Synergy Settlement Services................................................................ inside front cover Video Production Image Resources, Inc...................................................................... 25 Visual Communications Trial Consultant Images of Justice............................................................................. 47

CALL FOR OFFICER/DIRECTORS/ TRUSTEE NOMINATIONS The FJA/FJ PAC Nominating Committee is seeking nominations for FJA Officer Positions of President-Elect, Treasurer and Secretary and 12 vacancies on the FJA Board of Directors. The FJ PAC is seeking nominations for 2 Board of Trustee positions for 4-year terms in the 1st and 2nd DCA’s. The committee will present a slate of nominees to the membership for consideration at the FJA/FJ PAC General Membership Meeting at 1:15pm on Wednesday, June 22, 2016. The Annual General Membership Meeting is held in conjunction with the Florida Justice Association’s Annual Convention, June 22-25, 2016, at The Breakers Palm Beach Resort & Spa. Nominations will also be accepted from the floor at that meeting. Elections for these FJA positions will take place on Thursday, June 23, 2016, from 2:00pm – 3:30pm. If you are interested and would like further information about Officer, Board and Trustee positions, please contact Lee Phillips by May 6, 2016 at (850) 521-1033 or lphillips@

66 | January/February 2016 |


Just as a master vintner knows when it is time to harvest his grapes, John


knows when a dispute is ripe for mediation and settlement. He knows the process, like making a fine wine, takes preparation, patience, and perseverance. Engage his experience, wisdom and skill, acquired over many years of crafting creative settlements, and enjoy the taste of resolution. For more information about Upchurch Watson White & Max, visit or call (800) 264-2622.

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