FJA Journal - July/Aug 2016 by Florida Justice Association

JOURNAL FLORIDA JUSTICE ASSOCIATION

Florida Justice Association • July/August ® 2016 • #591

FLORIDA JUSTICE ASSOCIATION

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JULY-AUGUST 2016 -March NO. 591 2014 March 2014

CONTENTS HIGHLIGHTS 6

On the Cover:

pg 8

Julie Kane, Incoming AAJ President

Vigilance is needed in the defense of the Powell doctrine in insurance bad faith cases.

Evidence Trial Notebook: the State of Mind hearsay exception

When can a trial court reempanel a jury to correct a mistake in the verdict?

Special closing argument tips for uninsured motorist cases

IN THIS ISSUE The history, politics and litigation behind the Lake Okeechobee algae bloom crisis

How to fight collateral sources defenses after the Affordable Care Act and Joerg

pg 30

pg 50

4 FJA Events Calendar 5 President’s Message — Jimmy Gustafson 6 Executive Director’s Message 8 Special Focus 10 Cases and Commentaries — Kenneth D. Kranz 12 Legislative Notes 16 Tips for Auto Practitioners — Dale Swope 20 Insurance — Gregory Yaffa 24 Mass Torts — Chris Paulos and Andrew McGraw 28 Medical Malpractice — Scott R. McMillen and Allison McMillen 30 Products Liability — C. Richard Newsome and William C. Ourand 38 Worker’s Compensation — Richard A. Sicking 40 Evidence — Matt Schultz 42 Civil Procedure — Roy D. Wasson 46 Closing Argument — Philip Burlington, Barbara Green and Chris Carlyle 50 FJA Appellate Practice Section – Celene Humphries 62 Member Outreach 65 EAGLE Spotlight 69 Index

www.FloridaJusticeAssociation.org | July/August 2016 | 3

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

EXECUTIVE DIRECTOR Debra Henley

PRESIDENT-ELECT Dale M. Swope

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

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

SEPTEMBER-2016 SEPTEMBER 16:

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

SEPTEMBER 23: Experts Webinar: (Rescheduled) Grief Expert

IMMEDIATE PAST PRESIDENT Todd E. Copeland

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

Masters of Justice, Loews Portofino Bay Hotel at Universal Orlando

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

LOCAL TLA REPRESENTATIVES Shannon Del Prado James W. Guarnieri Scott L. Henratty Daniel A. Iracki Gloria Seidule William D. Umansky Bernard F. Walsh AAJ OFFICER Julie Braman Kane AAJ BOARD OF GOVERNORS Sean C. Domnick Brenda Fulmer Rodney G. Gregory James R. Holland Nicholas C. Johnson Ricardo Martinez-Cid Herman J. Russomanno Andrew Weinstein JeanMarie Whalen Edward H. Zebersky AAJ STATE DELEGATES Troy Rafferty Clancey Bounds Daryl D. Parks

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

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

FJA CALENDAR

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

SEPTEMBER 28-29:

MARKETING COORDINATOR Kalon Hopkins

4 | July/August 2016 | www.FloridaJusticeAssociation.org

SEPTEMBER 30:

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

OCTOBER-2016 OCTOBER 14:

Proposals for Settlement Webinar

OCTOBER 21: Experts Webinar #10: Katzman OCTOBER 27: Drafting Civil Remedy Notices for UM Cases - Webinar

NOVEMBER-2016 NOVEMBER 17: Expert Webinar: (Rescheduled) Neuropsychologist NOVEMBER 18: Experts Webinar #11: Life Care Planner and Vocational Expert

DECEMBER-2016 DECEMBER 16: Experts Webinar #12: Human Factors Expert

PRESIDENT’SMESSAGE

DRAFT DAY IS HERE! by FJA President Jimmy Gustafson

t’s August and we are all thinking about one thing: our fantasy team picks. My league has our “draft day” on August 30th this year and I’ve been doing research for exactly who I’d like at each position if I were to get first picks. There’s only one draft day, so the decisions matter and late-season trades often come at a very high expense in my fantasy league.

In just a few days, the 2016 Primary elections will be here and the Florida Justice Association has an opportunity to get an absolute dream team to the benefit of the civil justice system. Only this isn’t fantasy—it’s real life democracy and the stakes absolutely couldn’t be any higher. In the Senate, two FJA members, PastPresident Gary Farmer and member Mike Clelland, could become Senators – but ONLY if they win their tough Primary elections. In the House, there are three FJA members who have been supported by our PAC in strong positions in their respective Primary contests: Leslie Jean-Bart (D-Jacksonville), Erin Grall (R-Vero Beach) and Sean Shaw (D-Tampa). They would each be incredible advocates for protecting the Seventh Amendment of the U.S. Constitution and Florida’s own Constitutional right of access to courts. What each of these members has done to get to a point where they are considered frontrunners is courageous, selfless and truly the mark of great public officials. They have sweated in Florida’s heat by walking neighborhoods to talk with their future constituents. They have poured out their souls answering countless surveys from trade associations. They have reached into their own wallets and dug deep. They have spent countless days being away from their families to do one thing: serve the people of Florida. That is a more hard core training camp than anything I could point to for any one of my “fantasy” team picks. Unfortunately, the FJA isn’t the only organization trying to put together a fantasy team with these Primary elections. As you read this, final decisions by insurance and powerful big business interests are being taken to direct massive amounts of money to get three individuals elected who will support their special interests instead of the people of Florida. In the case of Rep. Mike Hill (R- Pensacola), Rep. Dennis Baxley (R- Ocala) and Kathleen Passidomo (R- Naples), they have each had a special, identical distinction: they have filed the ultimate “get out of jail free card” legislation for the insurance industry: bad faith “reform”. They are truly the industry’s dream team on this singular topic. We are trying to prevent these people from making anyone’s team. All of this isn’t fantasy and it isn’t a game. Your FJA leadership and staff are engaging in real races that will have a major impact on what our Legislature looks like in the coming months, which will have an impact for a generation. If you were a part of supporting our fellow member candidates, thank you. And if we are successful when we wake up on August 31st, it will be our members that will be part of making this dream a reality.

www.FloridaJusticeAssociation.org | July/August 2016 | 5

EXECUTIVEDIRECTORâ&#x20AC;&#x2122;SMESSAGE

(WOMAN)TRIAL LAWYER

YEAR OF THE

by Executive Director Debra Henley

Debra Henley, Julie Braman Kane, Linda Lipsen

hen I began my journey with the Academy of Florida Trial Lawyers as legislative director in 1991, Karen Gievers of Miami was the first woman President AFTL had ever installed. I was excited about this, first because she had broken the mold, and secondly because of her unrelenting, "leave no stone unturned" lobbying style. (The only one I have ever seen match her tenacity in this department is Gary Farmer!) I knew Karen would expect the same dedication to the job from us all and that she had the credentials required of a successful president. At the time I believed that she would be the first of many women presidents to follow. For a multitude of reasons, for over a quarter of a century, this did not happen. Over the last several years, the FJA Women's Caucus and other past and rising leaders in our association have been working to increase the number of women who are actively engaging in FJA activities including committee work, CLE programs, fundraising and lobbying. The women's caucus has become an avenue for women lawyers to find and pursue their path to the board and to leadership positions within the FJA. We currently have four women members on the 11 member executive committee; Laurie Briggs, Tiffany Faddis, Leslie Kroeger, and myself as the Executive Director. This is unprecedented in our organization. Additionally, after a quarter of a century, we now have only the second woman in FJA history to climb the leadership ladder and be on track to become our president in 2019-2020. I have worked with Leslie Kroeger of the Cohen Milstein Sellers Toll, PLLC firm since the crashworthiness legislation first surfaced in 2010. It was clear to me that she had the intellect, drive and political savvy to become an indispensable volunteer leader. She cut her association teeth with editorial boards, committee testimony, and one on one discussions with legislators. She continues to answer the call to action and is enthusiastic about continuing the work of the association as an officer and as a future president. 6 | July/August 2016 | www.FloridaJusticeAssociation.org

Leslie Kroeger

The Honorable Karen Gievers

At the time of this writing I am in California for yet another important milestone in FJA history. Julie Braman Kane of Colsen Hicks Eidson in Miami has taken the helm as President of the American Association for Justice. She is the ninth President from Florida, and the only woman from the sunshine state to hold this position. She joins the esteemed group of Perry Nichols, Bill Colson, Al J. Cone, A. Ward Wagner Jr., Bill Wagner, Michael C. Maher, Larry S. Stewart and Julie's partner and mentor Lewis S. "Mike" Eidson. While I question Julie's timing, ( it is once again, and probably really is, THE MOST IMPORTANT election cycle of our LIFETIME), I can attest to her unbelievable work ethic, heart of gold, political diplomacy, and outstanding advocacy skills. Never one to pull the ladder up behind her, Julie has been and always will be incredibly supportive of the FJA's women's caucus. She is always there to advise and encourage the work of our women trial lawyers. We are all very proud of Julie and Leslie. Since assuming the role of the Executive Director of the Florida Justice Association six years ago, we have increased the number of women on the executive committee, doubled the number on the board of directors and provided more speaking and chairing opportunities. Under the leadership of Beth Finizio, the women's caucus is stronger and engaged, holding their first caucus retreat session this year. We have created a diversity committee and empowered our young lawyers section. In 2017 we will roll out the Florida Justice Association Leadership Academy to develop the next generation of leaders and to promote professional and personal development. It's the year of the woman trial lawyer in Florida, and from where I sit, I see opportunities ahead for many years to come. Thank you, ladies, for your commitment to the Florida Justice Association and to Justice. Congratulations and Best Wishes!

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Ads must not contain testimonials, must be in good taste and must not reflect unfavorably on the image of the Journal, FJA members or the legal profession. All ads will be subject to review by the FJA to ensure that they meet this standard, and all decisions by the FJA in this regard will be final.

may be a full page or a fraction thereof. Ads will not be 4] Ads accepted for the inside covers or back cover of the Journal. Ads will be accepted for publication on a “first-come, firstserved” basis, and the FJA reserves the right to determine placement and limit the total number of pages available for attorney advertising in each issue.

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on advertising opportunities available through the FJA or to get details on specifications, ad dimensions, policies and insertion orders, please email John Brazzell at jbrazzell@floridajusticeassociation or call (850) 521-1020.

SPECIALFOCUS:MASTERSOFJUSTICE

CLE EVENT

MASTERS OF JUSTICE

SEPTEMBER 28-29, 2016

LOEWS PORTOFINO BAY HOTEL AT UNIVERSAL ORLANDO

Brush up on your trial skills and techniques at the FJA Masters of Justice. Come with a “blank canvas” and let our speakers inform you of the latest updates in

personal injury law and demonstrate the proven methods of how to win in court. If you need to spark your creativity and work on your strategy, attend the FJA Masters of Justice seminars in Orlando.

WHY YOU SHOULD ATTEND Meet the experts face-to-face instead of just connecting by email, text and phone. Seminar speakers are available to answer your questions before and after the seminar. Networking – Not only do attendees network at the seminars, but some of the best conversations come from the hallways and the exhibit room. Some of the best professional relationships are developed at FJA live events. CLE spanning many fields of practice – Trucking, Auto Negligence, Insurance Bad Faith and Jury Selection. You have several CLE options available to you in a beautiful location.

8 | July/August 2016 | www.FloridaJusticeAssociation.org

MOJ SCHEDULE OF EVENTS Wednesday, September 28, 2016 8:30am – 5:30pm Registration and Exhibits Open

8:30am – 11:45am Insurance Bad Faith Seminar

8:30am – 12:00pm

Trucking Seminar

Noon – 1:45pm Founders' Award Luncheon

1:00pm – 5:30pm

Auto Negligence Seminar

2:00pm – 5:30pm

Noon – 1:15pm Board of Directors/ Leadership Training Thursday, September 29, 2016 8:30 am – 5:30 pm Registration and Exhibits Open

Jury Selection Seminar

Friday, September 30, 2016 Board of Directors 8:30am – Noon Meeting

REGISTER TODAY! LOEWS PORTOFINO BAY HOTEL AT UNIVERSAL ORLANDO 5601 Universal Boulevard • Orlando, FL 32819 FJA GROUP RATE IS AVAILABLE THROUGH SEPTEMBER 6, 2016 or until group room block is full: $199 (Deluxe Rooms). Please call the Loews Portofino Bay Hotel at 1-866-360-7395 for reservations. For savings on MOJ registration, please refer to the Masters Pass advertisement on the back of the Journal for more details!

FJA CLE Department (850) 521-1097

FloridaJusticeAssociation.org

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www.FloridaJusticeAssociation.org | July/August 2016 | 9

CASES&COMMENTARIES

In Brief

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

upreme Court holds that “a cause of action is available to one injured as a result of a false report of criminal behavior to law enforcement when the report is made by a party which has knowledge or by the exercise of reasonable diligence should have knowledge that the accusations are false or acts in a gross or flagrant manner in reckless disregard of the rights of the party exposed, or acts with the indifference or wantonness or recklessness equivalent to punitive conduct.” Valladares v. Bank of America Corp., So.3d , 41 FLW S253 (Fla. 6-2-2016). The plaintiff below, a bank customer, was injured when he was kicked in the head by a police officer while lying handcuffed on the floor of a bank lobby. The plaintiff’s clothing on the day of the incident bore a resemblance to that of a described bank robber who had been the subject of an advisory circulated to bank employees. When the plaintiff entered the bank to cash a check, despite any suspicious conduct on his part, an employee believed him to be the robber and activated a silent alarm. When the police arrived they attacked and apprehended the plaintiff; at a later point after the plaintiff had been seriously injured, they police realized that this was a totally false alarm. Plaintiff sued the bank, and during the trial the employee who had triggered the alarm admitted that she was wrong in failing to inform bank managers that the plaintiff was a customer and in failing to say something to the police officers when they rushed in and attacked the plaintiff. Judgment was entered for the plaintiff at trial, but the Third DCA reversed, holding that those who report crimes are protected by a qualified privilege and thus cannot be held liable for making a good faith report to the police absent a showing of malice and that in this case the plaintiff failed to prove the elements required to establish a cause of action because he failed to present a claim beyond simple negligence. The Supreme Court reversed, finding this result was based on a misunderstanding of Porkorny v. First Federal Savings & Loan Ass’n of Largo, 382 So.2d 678 (Fla. 1980) and that the decision below conflicted with both that decision and Harris v. Lewis State Bank, 482 So.2d 1378 (Fla. 1st DCA 1986), which recognized that a cause of action for negligent reports to law enforcement exists when the conduct goes beyond an innocent misunderstanding. It concluded that “negligence is a valid cause of action for injuries 10 | July/August 2016 | www.FloridaJusticeAssociation.org

arising from mistaken reports to law enforcement when the conduct complained of demonstrates reckless, culpable conduct to the level of punitive damages.” The 2011 amendment to §55.03(3), Fla. Stat., providing for annual adjustment of the post-judgment interest rate, does not apply retroactively to judgments entered between October 1998 and June 30, 2011. Townsend v. R.J. Reynolds Tobacco Co., So.3d , 41 FLW S269 (Fla. 6-9-2016). The 2010 version of the statute provided that the rate of interest in effect at the time a judgment is entered remains in effect until the judgment is satisfied. Effective July 1, 2011, the statute was amended to provide, among other things, that the interest rate would be adjusted annually. The Supreme Court concluded that the 2010 version of the statute created a vested right in a fixed rate of interest until satisfaction, and thus subsequent enactments, including the 2011 amendment, cannot divest judgment holders of the right to a fixed rate of interest without offending due process, so long as those judgments were obtained while the 1998 version of the statute was in effect. The Supreme Court amended Canon 5F of the code of Judicial Conduct to prohibit a senior judge from serving as a voluntary trial resolution judge or as an arbitrator in any case in a circuit in which the senior judge is presiding as a judge. In Re: Amendment to the Code of Judicial Conduct—Senior Judges Serving as Voluntary Trial Resolution Judges and Arbitrators, So.3d , 41 FLW S325 (Fla. 7-72016). The court had already imposed that restriction on senior judges providing services as mediators, and it stated the intent was to ensure that when a senior judge provides these types of alternative dispute resolution services, the dual service does not result in an appearance of or the potential for impropriety. A pharmacist’s duty to use due and proper care in filling a prescription that is intended for administration to a patient may involve more than simply filling the prescription as written, and the lack of direct patient contact does not shield a compounding

pharmacist from that duty because the duty arises not from a duty to warn the patient but rather from the duty not to fill a facially unreasonable prescription without further inquiry. Sorenson v. Professional Compounding Pharmacists of Western Pennsylvania, Inc., So.3d , 41 FLW D1119 (Fla. 2nd DCA 5-11-2016). A pharmacist has a common law duty to use due and proper care in filling a prescription, and a pharmacist may breach that duty even when he or she fills a prescription in accordance with the physician’s instructions if the prescription is unreasonable on its face. Here it was alleged that the defendant pharmacist knew or should have known that the prescribed concentration of hydromorphone was potentially fatal and nevertheless filled the prescription without further inquiry to the prescribing physician as to the dosage strength. The Second DCA found that this count properly alleged a breach of a cognizable duty to use due and proper care in filling a prescription. However, the court also upheld the dismissal of a different count asserting a cause of action for negligence per se based on the defendant’s filling a prescription without being registered or licensed as required by law. As to this, the court concluded that the licensing statutes contain no language suggesting a legislative intent to create a private cause of action for the violation of their requirements. “Where there is evidence that the harm could not have occurred even in the absence of [defendant’s] conduct, proof of causation cannot be based on mere speculation, conjecture, or inferences drawn from other non-exclusive inferences,” and although “a plaintiff need not prove causation with absolute certainty, it must at least introduce evidence ‘which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result’.” Broward Executive Builders, Inc. v. Zota, So.3d , 41 FLW D1126 (Fla. 4th DCA 5-11-2016). The case arose from a fatal fall by a painter working for a general contractor on a construction project. The decedent was painting a ceiling above a second-story catwalk and was using a stepladder and two scaffolds situated upon the catwalk, which did not have guardrails installed as required by OSHA guidelines. The decedent was found lying on the floor at the foot of the stairs below the catwalk; no one witnessed the fall. The plaintiffs alleged that the decedent fell from the catwalk itself while the defendant claimed that she likely fell from either the stepladder or one of the scaffolds. In the ensuing suit against the contractor for failure to maintain a safe workplace by not installing guardrails on the catwalk, the trial court denied a defense motion for a directed verdict and the jury returned a verdict finding the contractor fifty percent liable for the injuries. The Fourth DCA found that the circumstantial evidence in the case supported a finding that the decedent fell from a height of several feet and landed on her head with no clear indication of how or why, but it did not establish that it was more likely than not that she fell from a certain location on the catwalk because no guardrails were in place to prevent the fall. The court found there to be a “myriad of very plausible explanations and other reasonable inferences that can be drawn from the circumstantial evidence in this case.” “[B]ecause there is no evidence of how she fell or where exactly she fell from, it would be complete speculation and conjecture for any trier of fact to conclude that the lack of guardrails contributed to causing her injuries. … Proof that raises mere speculation, suspicion, surmise, or conjecture is not enough

to sustain a plaintiff’s burden of persuasion.” The court reversed for entry of a directed verdict for in favor of the defendant. The consent of one parent to a non-emergency medical procedure for a minor child is sufficient to permit a health care provider to render such care or treatment. Angeli v. Kluka, So.3d , 41 FLW D1223 (Fla. 1st DCA 5-25-2016). The consent of both parents is not required, and the court also stated that this rule applies even when the health care provider allegedly knew or should have known that the other parent objected to the care or treatment. “The bottom line is that health care providers are not required to referee parental disputes about medical care for their minor children, and may render medical care or treatment upon the consent of only one parent.” In an action by a widow against a cemetery company for violations of the Florida Funeral, Cemetery, and Consumer Services Act and the Florida Deceptive and Unfair Trade Practices Act based on allegations that the defendant misrepresentied to her that they would bury her husband in accordance with “Jewish burial customs and traditions” the trial court properly dismissed the complaint under the ecclesiastical abstention doctrine. Mammon v. SCI Funeral Services of Fla., Inc., So.3d , 41 FLW D1249 (Fla. 4th DCA 5-25-2016). Whether there was a misrepresentation turned on the preliminary issue, disputed by the parties, as to what constituted the “Jewish burial customs and traditions” that the widow thought would be employed by the defendant in the burial of her late husband. It was the resolution of that question by the court that would violate the ecclesiastical abstention doctrine. Summary judgment in a product liability action against the manufacturer of a jungle gym installed at a city park playground was reversed where inconsistent summary judgment evidence demonstrated a genuine issue of material fact as to the cause of the plaintiff child’s injuries. Bogatov v. City of Hallandale Beach, So.3d , 41 FLW D1252 (Fla. 4th DCA 5-25-2016). The plaintiff alleged that the child fell from a short distance off the jungle gym onto an unprotected hard surface, breaking his leg. Among other things, the record included a police report statement from the child’s nanny that the child had fallen from the jungle gym, which conflicted with her deposition testimony that he had fallen while running. The court noted that evidence of inconsistency in testimony and documentary evidence creates a disputed issue of fact for the jury and the court may not resolve this adversely to the nonmoving party. Where there was no showing or finding that without the prospect of a multiplier to an otherwise reasonable fee award the plaintiff would have had difficulty finding competent counsel to represent them in an insurance coverage dispute, a 2.0 fee multiplier was not justified. Fla. Peninsular Ins. Co. v. Wagner, So.3d , 41 FLW D1279 (Fla. 2nd DCA 6-1-2016). “Simply put, there was no evidence that the Tampa Bay legal market could not provide competent counsel for the [plaintiff’s] case at the prevailing hourly rates. Certainly, most (all?) attorneys would prefer to collect twice their market rate at the conclusion of a successful contingency fee case, a point that perhaps needed no expert testimony to illuminate. It does not follow, though, that the preference would create a dearth of competent lawyers who would have taken this case at the prevailing rate.” The court also rejected www.FloridaJusticeAssociation.org | July/August 2016 | 11

CASES&COMMENTARIES

the trial court’s justification that the case’s resolution through a trial, in and of itself, merited a fee multiplier: “We recognize the waning use of trials to resolve many civil disputes. ... But we do not glean from this record that an insurance coverage trial has become such a Halley’s Comet event that the majority of local, competent insurance lawyers would refuse to handle such a matter for anything less than double their market rates.” The “delayed discovery doctrine” as applied to child sexual abuse cases by the Supreme Court in Hearndon v. Graham, 767 So.2d 1179 (Fla. 2000), and which generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action, applies only to intentional tort claims against the perpetrator of the sexual abuse. W.D. v. Archdiocese of Miami, Inc., So.3d , 41 FLW D1296 (Fla. 4th DCA 6-1-2016). As a child, the plaintiff had attended a school owned, operated and staffed by the defendant Archdiocese. He alleged that at six years of age he was sexually abused by three priests over a period of time while they were pretending to counsel him about another incident of sexual abuse by a boy that occurred off campus. He further alleged that despite the Archdiocese’s and school’s knowledge of the sexual abuse, they continued to give the priests unfettered access to him and created and executed a cover-up plan to protect the priests and themselves from scandal and liability. The plaintiff alleged that recently after decades of self-protective amnesia he began to recall the prior abuse, and eventually he filed suit against the Archdiocese, the school, the estates of two deceased priests, and the one surviving priest. The court held that because the delayed discovery doctrine is limited to intentional tort claims against the perpetrator, the trial court did not err in dismissing the claims against the Archdiocese and the school. The court also rejected plaintiff’s argument that the claims against them fell under the provisions of §95.11(7), Fla. Stat., as an action founded on alleged abuse, holding that provision similarly applies to intentional torts by perpetrators of abuse, not to the vicarious liability of the principal for the acts of its agents. Chapter 2013-107, Laws of Fla., which adopted the federal Daubert standard for the admission of expert testimony, is procedural and applies retrospectively to pending cases. Bunin v. Matrixx Initiatives, Inc., So.3d , 41 FLW D1308 (Fla. 4th DCA 6-1-2016).

LEGISLATIVE NOTES With everyone focused on the elections, it’s still quiet on the legislative front. CALENDAR: August 30.............. Primary Election November 8........... General Election November 22......... Organizational Session March 7May 5, 2017........... 2017 Regular Legislative Session

12 | July/August 2016 | www.FloridaJusticeAssociation.org

Section 395.1041, Fla. Stat., the hospital “anti-dumping statute” permits but does not obligate a hospital to transfer a patient to another hospital, thus it does not create a statutory duty to transfer patients. Morejon v. Mariners Hospital, Inc., So.3d , 41 FLW D1359 (Fla. 3rd DCA 6-8-2016). Plaintiff had alleged that the hospital violated the statute by failing to transfer him to different hospital that was better equipped to deal with the medical issue he was suffering, and that as a result his condition worsened. The court found that because the statute is permissive the plaintiff failed to plead a viable cause of action against the defendant hospital for a statutory violation. The court noted that the plaintiff could have alleged a cause of action for medical malpractice under the facts of the case, but the statute of limitations for medical malpractice had passed. In a slip and fall action the trial court erred in granting summary judgment based on a finding that the plaintiff had failed to present any genuine issues of material fact as to whether the defendant knew or should have known of the dangerous conditions or that they occurred with regularity and were thus foreseeable where the plaintiff had filed the depositions of three witnesses, including the deposition of an employee of defendant, that tended to show that the defendant had actual or constructive knowledge of dangerous conditions when the tile at the entrance to the premises was wet. Suker v. White Family Limited Partnership, So.3d , 41 FLW D1368 (Fla. 4th DCA 6-8-2016). The Florida Bar has absolute immunity for actions taken within the scope of its authority as an arm of the Supreme Court in matters relating to the regulation of attorneys. Zavadil v. The Fla. Bar, So.3d , 41 FLW D1373 (Fla. 4th DCA 6-8-2016). The plaintiff had alleged that the Bar defamed him when it posted in his attorney profile and stated in a letter than he had been “disbarred” when the Supreme Court had in fact “revoked” his license for making material omissions in his application for admission to the Bar. Aside from the immunity, the court also noted that a revocation of a license can be tantamount to a disbarment. Requiring the plaintiff in the course of discovery to reveal when and with whom she consulted for the general purpose of discussing possible legal remedies stemming from an alleged incident of medical malpractice did not implicate the attorney-client privilege. Coffey-Garcia v. South Miami Hospital, Inc., So.3d , 41 FLW D1458 (Fla. 3rd DCA 6-22-2016). The defendant in the course of investigating when the plaintiff first comprehended a reasonable probability that her child’s injury was caused by malpractice persuaded the trial court to enter an order requiring her to divulge the names of attorneys she had met with and dates of consultation regarding possible legal remedies, and further requiring her to answer all questions related to the reasons why she first sought out legal counsel and any subsequent counsel. On certiorari review, the Third DCA allowed the former, but not the latter, stating that while the plaintiff could be required to answer factual questions about what she learned at various points in time concerning the nature and potential causes of her daughter’s condition from sources other than the attorneys she consulted, she could not be forced to answer questions that would reveal the contents of advice or information she received from the attorneys.

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www.FloridaJusticeAssociation.org | July/August 2016 | 13

CASES&COMMENTARIES

Where a pre-suit settlement in a case involved minors and the total settlement amount to all parties was $50,000 or more, the trial court was required to appoint a guardian ad litem to represent the children’s interest before approving of a settlement that disposed of the children’s claims. Allen v. Montalvan, So.3d , 41 FLW D1469 (Fla. 4th DCA 6-22-2016). See §744.3025(1)(b), Fla. Stat., and Fla. Probate Rule 65.636(d). The statue requires the court to appoint a guardian ad litem before approving a settlement “in a case in which the gross settlement involving a minor equals or exceeds $50,000.” Here, the plaintiff argued that $25,000 of the $50,000 policy-limits settlement was earmarked to settle the claim of the deceased driver and therefore should not be counted, but the court found that the total tendered settlement of $50,000 was intended to settle all claims, including those of the minor children, and thus was a settlement “involving a minor.” While a defendant in a criminal proceeding who has peremptory strikes remaining may retract his acceptance of a juror and object to the juror any time before a jury is sworn, there is no collateral right to retract a previously made peremptory strike in order to use it on another juror. McRay v. State, So.3d . 41 FLW D1514 (Fla. 4th DCA 6-29-2016). The court certified possible conflict with McIntosh v. State, 743 So.2d 155 (Fla. 3rd DCA 1999). “[A] trial court does not abuse its discretion in ordering a party to pay attorney’s fees pursuant to section 57.105(1), on the court’s own initiative, when a motion is filed by a party and the moving party fails to comply with the safe harbor requirements of rule, as long as it can be determined from the record that the trial court is not simply adopting the moving party’s defective motion.” Watson v. Stewart Tilghman Fox & Bianchi, P.A., So.3d , 41 FLW D1523 (Fla. 4th DCA 6-29-2016). The appellees, who were the successful defendants below, moved for fees pursuant to §57.105, Fla. Stat., but did not fully comply with the safe harbor notice provisions of the statute. The Fourth DCA determined that the safe harbor provisions do not apply to the award of fees on the court’s own initiative. It reasoned: “The goal of the safe harbor notice provision is to provide an opportunity to withdraw from going forward with a claim or defense that cannot be supported by the application of the law to the facts. … Because the trial court must always remain neutral, it is inappropriate to require the trial court to comply with the safe harbor notice provisions. Such a construction … would improperly violate the trial court’s neutral position and effectively preclude the trial court from awarding fees as a sanction on its own initiative.” The court also construed the statute as not requiring the trial court to give a separate notice of its intent to entertain a §57.105 motion on its own initiative when a motion for such fees is filed by a party and notice of hearing on the party’s motion is given. Here, the court found that there was record support for the conclusion that the trial court’s imposition of §57.105 fees was based on the trial court’s own initiative. The trial court abused its discretion in ordering an attorney as a sanction for bad faith conduct to “self-report this violation to the Florida Bar within thirty (30) days and provide confirmation of

14 | July/August 2016 | www.FloridaJusticeAssociation.org

such reporting to the Court by a notice of filing to be placed on the docket in this case.” Parrish v. RL Regi Financial, LLC, So.3d , 41 FLW D1537 (Fla. 2nd DCA 6-29-2016). The court noted that while a trial court may impose attorney’s fees and costs as a sanction for an attorney’s bad faith conduct, it has no inherent authority to order an attorney to self-report a violation to the Bar with confirmation of same to be placed in a public court file. A person who has successfully demonstrated that he has “standyour-ground” immunity under §776.032, Fla. Stat., in a criminal proceeding does not have to prove entitlement to the immunity again in a subsequent civil suit based on the same incident; conflict certified. Patel v. Kumar, So.3d , 41 FLW D1541 (Fla. 2nd DCA 6-29-2016). “[F]rom a person’s lawful use of force in a single incident springs a single immunity that encompasses all criminal and civil actions based on that conduct. The immunity does not depend on the manner by which it is invoked; the legislature prescribed none. Neither does it depend on the procedural mechanism devised by the courts for discerning it....” The court certified direct conflict with Prof ’l Roofing & Sales, Inc. v. Flemmings, 138 So.3d 524 (Fla. 3rd DCA 2014). Question certified: Does the single publication rule bar a defamation claim based upon information reported to the [National Practitioner Data Bank] if not commenced within two years of the date of the report?” Ashraf v. Adventist Health System/ Sunbelt, Inc., So.3d , 41 FLW D1550 (Fla. 5th DCA 7-1-16). The plaintiff was a physician whose staff privileges were permanently revoked by the defendant hospital. As required by federal law, the hospital reported its adverse action, including the hospital Investigative Review Committee’s 22 factual findings regarding him, to the NPDB, which then included them in a confidential report that is available upon request by a select group of legally authorized entities. Six years after the information was reported to the NPDB, the physician sued the hospital for defamation, claiming the report contained false and defamatory material that directly resulted in a loss of employment opportunities. The issue was whether the two-year statute of limitations was to be applied subject to the “multiple publication rule,” under which each communication of the defamatory material is considered a new publication, or the “single publication rule,” under which a cause of action for a widely circulated publication is deemed to have accrued at the time of the first publication. The court found that that with regard to reports to the NPDB, the two-year statute of limitations begins to run when the report is issued to the NPDB and any subsequent issuance of that report to a legally authorized entity does not accrue a new limitations period. The court certified the question as one of great public importance. 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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TIPSFORAUTOPRACTITIONERS

DEFENDING POWELL BY DALE SWOPE

ne of the most important realms of Florida tort law is insurance bad faith. Within that sector one of the most important doctrines is derived from Powell v. Prudential, 584 So.2d 12 (Fla. 3d DCA 1991).

Powell is frequently invoked for two elements that have become part of the bedrock of our law. One is the obligation of an insurer to initiate settlement negotiations, instead of just sitting around waiting on a demand from the plaintiff. The other is that if the carrier should have initiated settlement discussions but does not, there is a rebuttable but durable presumption that the outcome would have resulted in a successful settlement, either within the policy limits or close enough that the insured could contribute the difference. If either of these foundational pillars were weakened, the consequent harm could be tremendous. And that, of course, is exactly what the enemies of the insurance consumers have never stopped trying to do. The latest threats have made inroads that deserve immediate attention.

16 | July/August 2016 | www.FloridaJusticeAssociation.org

In the recent case of Welford v. Liberty Insurance Corporation, from the Northern District, the court granted summary judgment for the insurer. F.Supp.3d , 2016 WL 3360431 (N.D. Fla. 6-2-2016). Taking facts and inferences against the insurer, the insured called to advise that she had been contacted by an investigator working for a lawyer representing the family of a young pedestrian who had been killed in an accident that her daughter had witnessed. (Not just â&#x20AC;&#x153;a lawyer,â&#x20AC;? actually. It was Fred Freaking Levin!). She advised that the investigator was asking for liability insurance information, but that she had refused to provide it to him and instead told them she had no coverage. She was transferred to a supervisor who told her that if her car was not involved in a collision, and its driver did not get a ticket, then she had nothing to worry about. That phone call complied with the policy obligation requiring the insured to notify the carrier of any potential claims. Liberty did nothing to investigate the loss. If they had, they would have learned that the driver of another car, the one that did hit the

children, was blaming the insured’s daughter’s boyfriend (who was driving the insured vehicle with permission) for erratic driving. That driver claimed the boyfriend was going slowly on a dark rural road, but when the second car attempted to pass, the Mercury sped up to prevent it. On the driver’s next attempt, the Mercury sped up again, and while still in the oncoming lane, the other car struck three pedestrians that he never saw, killing the deceased child whose family was making a claim, killing another young person, and badly injuring the third. In fairness, this would never be considered an open and shut case against the Liberty insured. However since there was only a 10/20 policy, any fool who was facing the full exposure would have obviously tried to settle for those limits, because the damages were so high. Several months later, when it learned a lawsuit had been filed, Liberty immediately tendered, spontaneously, its full $20,000 limits to all three claimants. Mind you, Liberty tendered the money despite doing absolutely no additional investigation. It knew nothing more than it could have known had it followed up on the call from the insured, instead of just blowing it off. Of course, the plaintiff was given no explanation for the delay, and moved forward with the case. It resulted in a verdict finding 38 percent fault on the driver of the insured vehicle and well over a million dollars in damages. A claim was then brought against Liberty for failing to investigate and settle the claim pre-suit, and in course, Liberty filed a motion for summary judgment. Let’s pause and go back to Powell. It’s one of those cases that many people speak authoritatively about, even though they never really read it carefully. Let’s get the story straight. In Powell, coincidentally, the insured’s daughter ran over pedestrians who were walking in the roadway. In the first 30 days after the accident, the plaintiff’s attorney sent a series of letters expressing interest in settling and asking about the coverage limits. These letters were essentially ignored, but on the 53rd day after the accident, Prudential tendered its policy limits. This offer was rejected “since the lawsuit had already been filed,” and a $250,000 excess verdict resulted. In the bad faith case, the trial judge granted DV at the close of evidence, without articulating a reason. That lack of an explanation produced an appellate opinion that truly had to empty the clip, covering all the different topics that might have been what the trial judge had in mind when he granted DV. It is a remarkably short opinion, however, so some of these topics were covered only by rapid fire headshots using ten word takeaways from out-of-state citations. One of those shots reads as follows:

III, Pushing the Envelope: Exploring The Newest Trends In Bad Faith Exposure In Automobile Cases, January 1, 2007, http://www.butler. legal/pushing-the-envelope-exploring-the-newest-trends-in-bad-faithexposure-in-automobile-cases. Taken to its logical extreme, that view is that an insurer who is faced with a twenty million dollar quadriplegic claim reasonably estimates a forty-nine percent chance of losing, and only a ten thousand dollar policy limit would have no duty to tender. The net value of that claim – the exposure to the insured – is almost ten million dollars, nearly a thousand times his policy limits. But under the insurer’s view, that carrier can sit back as long as it wants, unless and until someone makes a demand on it. Fortunately, no court ever adopted this restricted approach. But now, in the Welford case, a Federal trial judge has written that “ holds that an insurance company is obligated to initiate settlement discussions (it actually says negotiations, but whatever) in a probable excess case … but that obligation only exists if liability is clear.” It is easy to shrug this off as an aberrational trial court decision that has less precedential value for Florida law than a state judge sitting in Small Claims Court. In fact, if you run a Westlaw search for orders and opinions from this Reagan appointee containing the words “bad faith,” you get 174 hits, but only ONE of those was an insurance bad faith claim that survived his ruling, and it was brought by one insurance company against another. But it would be a mistake to dismiss it so casually. The carriers are deeply invested in spreading this holding, and it does, after all, track words that appear in the Powell case. Moreover, every defense expert is going to have this opinion as support now, and they will survive challenges unless it is reversed. Since Fabre, there is NO case where some kind of argument cannot be made about liability. Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). Actually, in Powell itself, the liability estimate was only 80-100 percent – not entirely “clear.” Carriers will quickly learn to pepper their files with entries about “liability being uncertain” even in rear end collisions at red lights, because of questions about roadway design, defective seatback restraint systems, or whatever else they can think of. This little order granting summary judgment could gut Powell, plain and simple. So, at this point, you might be thinking maybe you should go back and actually read Powell. Did it really hold that?

Where liability is clear, and damages so serious that a verdict in excess of the policy limits is likely, an insurer has an affirmative duty to initiate settlement negotiations.

Well, it did not. But to really understand the case, you gotta go deep, and we should if we are going to protect it, and if we are to avoid advancing fortunes on what we call “Powell cases” that are destined to fail.

The insurers were of course aghast when they read the Powell opinion. They immediately honed in on the “where liability is clear” language to limit its scope. The Butler, Pappas firm, particularly, took up this battle cry early and often. See Kathy Maus and Julius F. “Rick” Parker,

The first holding of the Powell decision, and the one that all the others depend on, is that the insured does not have to demonstrate that there was an express settlement offer by the injured plaintiff, in order to sue the carrier for failing to settle. www.FloridaJusticeAssociation.org | July/August 2016 | 17

TIPSFORAUTOPRACTITIONERS Let that sink in, because that holding comes before all the staccato holdings that follow. It is the key to proving the fallacy of the Welford opinion. It applies to every case, not just those with “clear liability” and it says that you can sue for a failure to settle, in any case, without showing that the plaintiff ever made any offer.

assessment, to be sure, but only when also considered in connection with the damages. If damages are huge, liability need not be as clear. A ten percent chance of losing a ten million dollar verdict is ten times more dangerous for the “reasonable and prudent man” than a 100 percent chance of a one hundred thousand dollar verdict.

How can it be, that a carrier is sued because it failed to settle when it could have, if the plaintiff never made an offer? There is only one way. The only way is if liability is imposed because the insurer failed to make an offer to the plaintiff while the plaintiff made none. The carrier can be sued for failing to make the first offer – for failing to initiate the negotiations. There it is!!

Indeed, Liberty’s own conduct in Welford, affirmatively offering its full policy limit only two days after learning of the lawsuit, showed that it understood its obligation for an insured faced with an improbable but real exposure to a seven figure verdict.

Once you get your arms around that, much of what follows in Powell is surplus, or just examples of application of that rule. The opinion says “Bad faith may be inferred from a delay in settlement negotiations which is willful and without reasonable cause.” That stands to reason that once you get that, carriers can be sued for not settling even without a demand. “Bad faith liability may be predicated on a refusal to disclose policy limits, because it hinders settlement.” That too makes sense in light of the original holding. “Where liability is clear and injuries so serious that a judgment in excess of the policy limits is likely an insurer has an affirmative duty to initiate settlement negotiations.” That is an obvious subset of the implication of the first holding. Where the Welford court’s reasoning goes awry is when it implicitly inserts an unauthorized and inconsistent “only” at the beginning of that “where liability is clear” sentence, to suggest that no such duty exists in the absence of clear liability. That mistake is made undeniably clear simply by reading the next sentence in Powell that paraphrases a Kansas case it cites as authority, that held a “duty to initiate settlement negotiations arises if carrier would initiate settlement negotiations on its own behalf were its potential liability equal to that of its insured.” Farmers Ins. Exchange v. Schropp, 222 Kan. 612, 567 P.2d 1359 (1977) (emphasis added). Moreover, the very next case cited by the Powell court as authority for its holding is one where liability was “probable” but certainly not clear, involving a six year old pedestrian struck by a car. Alt v. American Family Mut. Ins. Co., 71 Wis. 2d 340, 237 N.W.2d 706 (1976). These passages are, of course, comfortingly familiar to us in Florida. Since 1973 it has been our rule that “If the circumstances are such that a reasonable and prudent man with the obligation to pay all the recoverable damages would settle for an amount within the policy limits, it is the legal duty of the insurer to do so.” Baxter v. Royal Indem. Co., 285 So. 2d 652 (Fla. 1st DCA 1973) cert. discharged, 317 So.2d 725 (Fla.1975). Whether it is the language of the Baxter case, or the language of the Kansas and Wisconsin cases cited in Powell, the factor that drives the obligation to initiate settlement negotiations is the exposure of the insured to recoverable damages. Liability and fault are factors in this 18 | July/August 2016 | www.FloridaJusticeAssociation.org

We should know by now that insurance companies will never ever want to give up their desire to selfishly put their own interests ahead of the consumers whose premium checks pay for their advertisements promising to protect us if we buy their products. Ironically, it also pays the high flying salaries and executive bonuses they hope to earn by breaking those very same covenants. It is only we who keep that from happening, so we have to stay vigilant to protect the power in law that our forerunners worked so hard to create. Fighting City Hall Imagine putting forth all the energy, time, and treasure it takes to try a personal injury case to the jury. Imagine, in fact that you called two physician witnesses to confirm that the accident resulted in a permanent injury and that their testimony went exactly as planned. In fact, imagine that one of them actually treated the plaintiff before the accident, making her testimony even that much stronger. Then imagine a trial judge, who, in a massive abuse of the power entrusted to him, granted a DV after the entire trial was finished, save closing and instructions, because he personally believed the plaintiff wasn’t actually permanently injured in the accident. Send the jury home, give the exhibits back to the parties, and turn out the lights. Obviously you can get this reversed on appeal, and in James v. City of Tampa, So.3d , 2016 WL 3201221 (Fla. 2d DCA 6-10-16) the plaintiff did just that. But that is a frustratingly hollow victory. When you remember that the maximum recovery in a sovereign case is two hundred thousand dollars (including costs) and the maximum fees are twenty-five percent of that, despite any number of trials or appeals, the problem becomes clearer. Why wouldn’t a fair-minded judge, in such a situation, simply withhold ruling and let the jury render a verdict before granting the motion? That way if (or when) the ruling is reversed, the verdict can simply be reinstated and judgment entered. What’s the risk? Time spent in closing argument? Doing it any other way requires starting entirely over. Knowing how the sovereigns work, that means an updated deposition, more surveillance, a new IME, a new fleet of experts to replace those who may not have performed well at the first trial, new discovery for all of those, and, of course, another entire trial. It is essentially a public service for an attorney to take on a sovereign case. But when judges seem to go out of their way to make it as difficult

and expensive as possible, public service quickly becomes pro bono work for the plaintiff’s lawyers who, unlike the judge and defense attorneys, are paid nothing for all that extra work. We can talk about access to courts forever, but it doesn’t mean much when the courthouse doors are slammed shut to those injured by employees of the sovereign. Justice Against GEICO is Coming Down Like Waters It is entertaining to watch while judges learn what all the rest of us already know about GEICO. The inner workings of the claims department of that company are diametrically opposite of the friendly, helpful face they offer in their advertising, and the courts seem shocked to see it. Recall that in an earlier order, a federal court ordered a new trial because of GEICO’s use of a lawyer/witness whose testimony was shown to be demonstrably, objectively false. Sanctions were imposed, including a determination that privileges were waived in gross, requiring supplemental production. See, The Truth is Out About GEICO, FJA Journal November/December 2015 #587. Amazingly, GEICO seems ready to continue its battle against the court, and its compliance with the sanction order has been called into question. Batchelor v. GEICO Cas. Co., 611CV1071ORL37GJK, 2016 WL 3552729 (M.D. Fla. June 30, 2016). GEICO apparently contends that the order imposing sanctions and requiring a new trial was a big win that vindicated its conduct. It’s worth the time to read the order where the court seems genuinely flummoxed by the conduct, but makes clear that it now lacks confidence in any of “GEICO’s representations,” particularly about what documents are or are not in its files. The court conducted another in camera review of all the documents GEICO withheld and delivered to the plaintiff the majority of the documents GEICO had stubbornly held back. Big sanctions are clearly coming. Meanwhile, in a separate case involving the same lawyers in a different division of the Middle District, GEICO was ordered to pay several thousand dollars in sanctions for continuing discovery violations. Order on Defendant’s Motion for Reconsideration, Gonzalez and Ramjohn v. GEICO Gen. Ins. Co., 8:15-CV-240-T-30TBM (M.D. Fla. May 26, 2016). The money doesn’t matter to them, no doubt, but the credibility finally being lost with the courts certainly will. Hopefully, soon, the word will get out to all the judges in the state about what actually goes on with the hardball litigation tactics this company adopts against its own customers, who merely seek what they are entitled to. PFS Conundrum For those of you tracking the mud bog we call the proposal for settlement rule (“PFS”), this month brings a new wave of contradiction and confusion. One of the oldest cases in this mess was Goldy v. Corbett Crane Services, Inc., holding the 30-day statutory deadline to accept a PFS is automatically tolled simply by filing a motion to enlarge time, pursuant

to Fla. R. Civ. P. 1.090. 692 So. 2d 225 (Fla. 5th DCA 1997). This is based on the idea that the rules, not the statute, govern matters like deadlines, and under the rules, a timely motion for extension of a deadline is self-executing, until a hearing can be heard. In Spencer v. Barrow, 752 So. 2d 135 (Fla. 2d DCA 2000), that same rule was applied with a doubling down, since it reversed by certiorari a trial court’s discretionary ruling that determined a deadline missed for filing a motion for fees that was caused by contradictions between the rule and the statute was inexcusable. Now, a recent decision has again certified a conflict to the Supremes, this time with Goldy. Ochoa v. Koppel, So.3d , 2016 WL 2941099 (Fla. 2d DCA 5-20-16). In Ochoa, the court found that motions to extend under Fla. R. Civ. P. 1.090 do not automatically toll the 30-day period. Only after a court has ruled in favor of the extension of time will the thirty day period be enlarged. In other PFS decisions, Nunez v. W. Riley Allen, So.3d , 2016 WL 3452511 (Fla. 5th DCA 6-24-16), reversed a trial court’s decision holding the PFS was ambiguous when it stated the proposal was “inclusive of all damages,” when there were two defendants and therefore nobody could ever be smart enough to figure out whether “all damages” just meant damages recoverable from the offeree or both defendants. Florida Peninsula Ins. Co. v. Brunner, was a good read. So.3d , 2016 WL 3181908 (Fla. 3d DCA 6-8-16). CSK served a PFS that required agreement by “ANN BRUNNER and his [sic] respective counsel that all known liens, attorney charging liens or other claims of third parties, will be satisfied and extinguished by ANN BRUNNER and his [sic] counsel.” Since this required the commitment of the attorney in addition to the defendant, but didn’t have an additional signature block for the lawyer to sign, it was invalid. That format suffered from the “joint offer” evil since Ms. Brunner could not evaluate an offer made only to her (and not her lawyer). On the other hand, in Manuel Diaz Farms, Inc. v. Delgado, So.3d , 2016 WL 2731461 (Fla. 3d DCA 5-11-16), the Third District reversed the trial court’s order invalidating defendant’s PFS because it did not include whether the claims would be resolved by release, dismissal, or other means and also because defendant amended its affirmative defenses during the pendency of the PFS. The Third DCA held that such language was unnecessary and defendant’s amendments to its affirmative defenses did not moot the PFS. The PFS chaos isn’t much fun to write about, and it won’t fix itself. Session is coming, and maybe, possibly, the legislature can create something workable and predictable – something the courts can’t mess up. Dale M. Swope

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

www.FloridaJusticeAssociation.org | July/August 2016 | 19

INSURANCE INSURANCE vacate the default judgment (equating to a finding of liability against him) while there had not yet been a determination of liability against his wife (the active tortfeasor who did file an answer).

INSURANCE DECISIONS From Around the State by Gregory Yaffa

here was certainly no shortage of homeowners’ property damage and sinkhole cases since the last article. If these cases are pertinent to your practice or if you simply enjoy reading sinkhole opinions, please see Case v. Tower Hill, 41 FLW D1118 (Fla. 2d DCA 5-11-16); Certified Priority Restoration v. State Farm, 41 FLW D1133 (Fla. 4th DCA 5-11-16); Diaz v. Florida Peninsula Ins. Co., 41 FLW D1289 (Fla. 4th DCA 6-1-16); Start to Finish Restoration v. Homeowners Choice Prop. & Cas. Ins. Co., 41 FLW D1385 (Fla. 2d DCA 6-10-16); Citizens v. Perez., 41 FLW D1388 (Fla. 2d DCA 6-10-16); Allen v. State Farm, 41 FLW D1389 (Fla. 2d DCA 6-10-16); Citizens v. Retz., 41 FLW D1436 (Fla. 2d DCA 6-1716); and Citizens v. Nunez., 41 FLW D1479 (Fla. 2d DCA 6-24-16). In UM subrogation action, it was error for trial court to enter Final Judgment against vicariously liable party without first conducting an evidentiary hearing as to damages and when there had not yet been a liability determination relating to the active tortfeasor. Kotlyar v. Metropolitan Cas. Ins. Co., 41 FLW D1182 (Fla. 4th DCA 2016). Following Met. Casualty’s settlement of its insured’s property damage and UM claim, the carrier brought a subrogation claim against the active third party tortfeasor and her vicariously liable husband. In the subrogation claim, Met. Casualty pled entitlement to the $50,000 UM benefits that it paid its insured, as well as the $4,789.85 that it paid out in property damage. The damages were pled as an exact amount during the subrogation action but were unliquidated. In response to the subrogation complaint, the active tortfeasor filed a pro se answer denying liability, while her vicariously liable husband defaulted. The trial court denied the husband’s motion to vacate the default and considered the damages liquidated, in that the specific amount of $54,789.85 was pled. As such, without conducting an evidentiary hearing, the trial court entered a final default judgment against the husband in the amount of $54,789.85. In the appeal, the husband argued that the trial court erred in (1) determining the nature of the damages and entering the FJ without conducting an evidentiary hearing, and (2) denying the motion to 20 | July/August 2016 | www.FloridaJusticeAssociation.org

The Fourth District Court of Appeal reversed the trial court and remanded the action, holding that it was fundamental error to award damages against the husband without conducting an evidentiary hearing (“the setting of unliquidated damages without the required notice and without proof is regarded as fundamental error.” Talbot v. Rosenbaum, 142 So.3d 965 (Fla. 4th DCA 2014)). The Court held that by citing a specific amount of damages, Met. Casualty did not convert unliquidated damages to liquidated damages. Recognizing that this holding conflicts with Dunkley Stucco v. Progressive American Ins. Co., 752 So.2d 723 (Fla. 5th DCA 2000), the Court certified the question. In addition, the Court held that the trial court erred by entering a judgment against the defendant without an adjudication of liability against the defendant’s wife who was operating the vehicle at the time of the accident. Specifically, the Court stated, “allowing a default judgment to stand against Kotlyar, without an adjudication as to the liability of his wife, could lead to an absurd and unjust result if Metropolitan is able to obtain damages against Kotlyar based solely on his ownership of the vehicle, prior to an adjudication that his wife negligently operated that vehicle. Error to apply a multiplier where there was no showing that the insureds would have had difficulty finding competent counsel to represent them. Florida Peninsula Insurance Co. v. Wagner, 41 FLW D1279 (Fla. 2nd DCA 6-1-16): Florida Peninsula’s insureds made a claim against the carrier when a refrigerator water line broke and caused some flooding inside their home. Once the house was in a condition to have the extent of the damage ascertained, a dispute arose concerning the insurance company’s invocation of an “option to repair” provision in the policy, the scope of remedial work that would be required to repair the damage from the leak, and the selection and hiring of a contractor to effectuate those repairs. After the insureds’ neighbor (attorney friend trying to help them out) was unable to get the claim resolved, the insureds hired competent counsel on a contingency fee basis, who was able to obtain a favorable jury award in the amount $71,123.79. Following the favorable result, counsel moved for fees pursuant to §627.428, Florida Statutes. The parties stipulated to the reasonable number of hours and hourly rate, but disagreed as to entitlement to a contingency risk multiplier. Despite the insureds not testifying at the fee hearing, the trial court applied a 2.0 multiplier to the loadstar amount (reasonable hourly rate multiplied by a reasonable number of hours for the work performed). Based on the opinion, it appeared that the trial court awarded the multiplier simply because the insureds’ counsel litigated the matter through trial. The Second District Court of Appeal reversed, holding that counsel did not establish entitlement to a contingency risk multiplier pursuant to Standard Guar. Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla. 1990):

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INSURANCE

A court must consider three factors before it may award a fee multiplier in a contract dispute: (1) Whether the relevant market requires a contingency fee multiplier to obtain competent counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in [Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985)] are applicable, especially, the amount involved [in the litigation], the results obtained, and the type of fee arrangement between the attorney and his [or her] client. The Second District found that there was no showing or finding that without the prospect of a multiplier to an otherwise reasonable fee award, the insureds would have had difficulty finding competent counsel to represent them in the insurance coverage dispute (evidence presented by the carrier showed 258 local attorneys listed in Martindale Hubbell holding themselves out as first-party insurance attorneys). There was no evidence that the Tampa Bay legal market could not provide competent counsel for the plaintiffs’ case at the prevailing hourly rates. Where policy language was unambiguous, UM coverage denied when liability coverage was afforded under the same insurance policy. State Farm v. Smith, 41 FLW D1338 (Fla. 2nd DCA 6-3-16):

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In 2006, Smith (insured with State Farm) was involved in a crash while operating a non-owned vehicle with the permission and consent of the vehicle owner. The crash resulted in injuries not only to himself, but also to the passenger in the vehicle. The vehicle and the passenger were insured under a different State Farm insurance policy. Smith’s insurance policy extended liability coverage to him for the use of the vehicle insured under that policy, as well as for any other car that he “used but did not own,” including the subject vehicle. Following tender of the liability limits to the passenger under Smith’s State Farm policy, Smith amended his own complaint to include a UM claim against State Farm under his policy. State Farm moved for Summary Judgment, arguing that the uninsured motorist provisions of the Smith policy did not extend coverage to Smith in this case because the Smith policy defined the term “uninsured motor vehicle” to exclude any motor vehicle “insured under the liability coverage of this policy.” Because Smith’s policy extended liability coverage due to his negligent operation of the non-owned vehicle (tendered liability limits to passenger), State Farm contended that the unambiguous language contained within the policy precluded Smith from making a UM claim under that policy. The trial court disagreed and denied State Farm’s Motion for Summary Judgment. Citing to Fla. Peninsula Ins. Co. v. Cespedes, 161 So.3d 581 (Fla. 2d DCA 2014), (“Where the language of an insurance policy is unambiguous, we are required to interpret it in accordance with the plain meaning so as to give effect to the policy as written”), the Second District Court of Appeal reversed. The Court held that the policy definition of “uninsured motor vehicle” unambiguously excluded motor vehicles insured under its liability provisions. Because the non-owned vehicle was insured under the liability provisions of the Smith State Farm policy, the trial court erred by holding that the claimed UM exclusion did not apply. Insurer entitled to rescission of policy due to insureds’ misrepresentation on the application. Certain Underwriters at Lloyd’s London v. Jimenez, 41 FLW D1431 (Fla. 3rd DCA 6-15-16):

In 2007, Raul and Ada Jimenez took out a homeowners policy with Lloyd’s. In the application, the homeowners attested to the fact that they had a central station monitor as a protection device that monitored for smoke, temperature, and burglary. The homeowners were given a discount because of the presence of the central station monitoring. The policy renewed in 2008 and 2009. For each of these renewals, the homeowners affirmatively represented that there had been no changes in the property or the risk as stated in the 2007 application. The Lloyd’s policy contained a Concealment or Fraud provision, stating that the policy would be void if the applicant intentionally concealed or misrepresented any material fact or circumstances; engaged in fraudulent conduct; or made a false statement pertaining to insurance. The entire policy would be void if an insured has made false statements, regardless of whether the statements are intentional or fraudulent. In 2009, there was a kitchen fire at the subject property. When the homeowners made a claim for the property damage incurred, Lloyd’s filed a two-count complaint for (1) declaratory relief, claiming that the policy did not provide coverage for the kitchen fire based upon the language of the protection device endorsement provision, and (2) alternatively, seeking rescission of the policy due to material misrepresentations in the application. In denying coverage, Lloyd’s returned premiums paid from the inception of the policy.

documented that they did not have the central station monitoring system for smoke and temperature in 2007 or any year thereafter. The Third District Court of Appeal reversed, holding that the misrepresentation in the insurance application was material and was detrimentally relied upon by the Lloyd’s, precluding coverage for the kitchen fire and entitling Lloyd’s to rescission of the policy. Section 627.409(1), Florida Statutes, provides that misrepresentations, omissions, concealment of facts, and incorrect statements on an insurance application will not prevent a recovery under the policy unless they are either: (1) fraudulent; (2) material to the risk being assumed; or (3) the insurer in good faith either would not have issued the policy or would have done so only on different terms had the insurer known the true facts. Lloyd’s relied on (2) and (3). The Court emphasized that an insurance company has the right to rely on an applicant’s representation in an application for insurance and is under no duty to inquire further unless it has actual or constructive knowledge that such representations are incorrect or untrue. Additionally, under Florida law, an insurer has the right to unilaterally rescind an insurance policy on the basis of misrepresentation in the application for insurance. Gregory M. Yaffa

joined Domnick, Cunningham & Whalen, LLC in 2004 and currently practices in the areas of insurance company bad faith, personal injury and wrongful death. Greg is admitted to practice law not only in the State Courts of Florida, but also in the Florida Federal Courts, including the United States District Court, Middle District Court of Florida, the United States District Court, Southern District of Florida and the United States District Court.

The trial court found in favor or the homeowners for declaratory relief as to coverage and for breach of contract and held that Lloyd’s was not entitled to rescission, despite the fact that the evidence

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www.FloridaJusticeAssociation.org | July/August 2016 | 23

MASSTORTS

PROTON PUMP INHIBITORS AND KIDNEY DAMAGE:

By Ben Martin and Matt Schultz

The Damages of the Purple Pill by Chris Paulos and Andrew McGraw

Introduction ver the last 15 years, the use of medication to control heartburn and acid reflux has skyrocketed. Quick and easy to obtain without a prescription, more than 15 million Americans use proton pump inhibitors (“PPIs”) to treat these problems, the most common brands being Nexium and Prilosec.1 Prescribed to treat an array of digestive disorders, PPIs block enzymes in the stomach that produce acid to address conditions such as acid reflux, heartburn, indigestion, and ulcers. As the general population has been increasingly exposed to these drugs, the safety of PPIs has come under increased scrutiny with an expanding body of scientific studies showing a strong link between long-term ingestion of PPIs and various life-threatening kidney injuries including Acute Kidney Injury (AKI), Acute Interstitial Nephritis (AIN), Chronic Kidney Disease (CKD), Renal or Kidney Failure, and End Stage Renal Disease (ESRD). Current evidence suggests that, despite knowing about the harmful effects of PPIs for years, PPI manufacturers did not timely warn of these deadly kidney injuries. Even today, the manufacturers and distributors of PPIs fail to warn consumers of all harmful kidney effects associated with their products. The decisions and delays by these manufacturers demonstrate that, once again, in the pharmaceutical business the lure of blockbuster profits takes precedence over the safety of consumers. Common Historical Treatments for Digestive Maladies America has become a nation of indigestion. The Standard American Diet has devolved in the last five decades to consist primarily of easy to access chemical-laced and refined fast foods. “Many Americans gorge on sugars, refined flour, and processed food” and, as one would expect, an increase in gastrointestinal illnesses has also occurred.2 3 In typical fashion, the pharmaceutical industry has approached this health issue from the perspective of “disease management” as opposed 24 | July/August 2016 | www.FloridaJusticeAssociation.org

to disease prevention, and in doing so, developed many pills to address the symptoms, but not the underlying causes, of gastric conditions. Now, after an onslaught of the best marketing money can buy, millions of Americans use prescription PPIs to treat a gamut of gastrointestinal conditions.4 In the not so distant past, acid reflux and heartburn were treated with time-tested antacids, products consisting of chemical bases designed to neutralize the acidic environment of the stomach.5 Common treatments included products like Rolaids, Tums, Maalox, Mylanta, and Alka Seltzer. In the 1980s, seeking to seize upon the increasing rate of gastrointestinal diagnoses, new medications known as H2 Antagonists were developed. As opposed to the universal “cure all” approach of sodium bicarbonate based products, these new drugs were targeted to treat peptic ulcers and gastroesophegeal reflux disease (GERD).6 These products work by competing with histamine for H2 receptors on the stomach’s parietal cells, depressing production of Hydrochloric Acid (“HCL”). The four agents developed were Tagamet (cimetidine), Zantac (ranitidine), Axid (nizatidine), and Pepsid (famotidine).7 The Rise of PPIs In 1989, Omeprazole, more commonly known as Prilosec, first hit the market.8 Prilosec was followed by a number of similar products including: Lansoprazole (Prevacid, 1995), Patoprazole (Protonix, 2000), and Esomeprazole (Nexium, 2001), among several others.9 Too much stomach acid leads to heartburn, acid reflux, and stomach ulcers. These new Proton Pump Inhibitors (PPIs) were designed to block the formation of stomach acid. PPIs aid in reducing HCL found in gastric fluids secreted by the stomach lining by blocking the gastric hydrogen potassium ATPase (H+/K+ ATPase) and thereby inhibiting gastric acid secretion.10

PPIs are much more effective than H2 Antagonists at blocking HCL producing enzymes in the stomach. However, with the development of this new form of medication came new and serious side effects. The low dose and the manufacturers’ assurances of safety induced doctors and patients alike to utilize PPIs for the long-term treatment of GI maladies. Over-the-counter availability of many of these medications only adds to their perception of the safety - when consumers are able to obtain PPIs without a doctor’s prescription, there is an increased feeling of safety associated with their use. When drugs are available without a prescription (“over the counter”), the importance of clear, accurate and up-to-date warnings is paramount. In such scenarios, a patient is able to obtain a drug without input or guidance from a medical professional, and thus, it is incumbent upon purveyors of such products to ensure that sufficient information is provided to the purchaser so that they can make informed decisions about the use of the medication. PPIs have been marketed as a safe and effective answer to heartburn giving its consumers the freedom to eat foods that would normally be considered off-limits. Instead of treating heartburn with a change in diet or the use of medication to relieve symptoms, people are now offered the possibility of preventing the cause of heartburn and acid reflux as a proactive measure instead of a reactive one. This “benefit” is touted to the drumbeat of direct-to-consumer marketing. However, this prophylactic approach and touted benefit inherently encourages the chronic long-term use of the products, and such use has been linked to debilitating kidney injury. Advertising these products as a panacea for people with heartburn and digestive problems, AstraZeneca has designed a highly effective and ubiquitous campaign to promote Nexium and Prilosec. Between 2012 and 2014, AstraZeneca’s advertising spending increased from $360.1 million to $602.7 million.11 Nexium and Prilosec have been particularly lucrative drugs, generating revenues of more than $6 billion in 2007 alone.12 As of 2012, the gastrointestinal market was valued at approximately $38 billion with approximately $22 billion of that coming from PPIs.13 Commercials for Prilosec, easily the most recognizable PPI commercials, feature a celebrity endorsement from Dan Whitney, better known as Larry the Cable Guy.14 15 16 The common theme in Prilosec commercials is The Cable Guy espousing that nothing beats zero heartburn and eating food that would presumably cause heartburn. Notably, in commercials for both Prilosec and Nexium, there was no mention of the danger of long-term use. Strategically, manufacturers increase their marketing around public events and holidays during which people are known to over-indulge or eat foods that exacerbate gastrointestinal issues. It’s no mere coincidence that Larry Cable Guy frequently espouses the benefits of the Purple Pill to millions of consumers during the Super Bowl or World Series. AstraZeneca has previously run afoul of rules against misrepresenting in advertising. In 2010, AstraZeneca had to pay a $520 million fine due to misrepresenting the benefits of Seroquel, an anti-psychotic medication.17 While Seroquel had been approved for treating schizophrenia and bipolar mania, AstraZeneca promoted the drug for unapproved uses as well such as aggression, sleeplessness, anxiety, and depression.18 While not admitting the charge, AstraZeneca agreed to pay the hefty fine. This was not the first time AstraZeneca had been slapped with a substantial fine. In June of 2003, AstraZeneca agreed

to pay $355 million to resolve criminal charges and resolve civil liabilities related to pricing and marketing practices involving Zoladex, a medication used primarily to treat prostate cancer.19 Relationship between CKD, AIN, AKI, and ESRD In the decades since PPIs were initially put on the market, their use has increasingly been linked to such medical issues as increased bone fractures, heart damage, kidney disease, and renal failure. However, this article focuses on damage to the kidneys and renal system. Located in the rear abdominal cavity, kidneys act as the filter of the body. Kidneys filter blood, help control blood pressure, and get rid of waste by excreting urine.20 Over the last several years, medical studies have increasingly supported a link between the use of PPIs as a class and serious kidney disorders. Acute Interstitial Nephritis (“AIN”) is the infiltration into the interstitium of the kidney tubules by inflammatory cells. AIN can progress to acute kidney failure. Delayed diagnosis of this condition and continued usage of the drug can lead to chronic kidney failure and other serious consequences.21 Unfortunately, AIN is difficult to differentiate from other conditions and frequently goes undiagnosed or misdiagnosed.22 As early as 1992, concerns have existed about the possible link between the first PPI, Omeprazole, and AIN.23 Due to the expectation that PPIs would swiftly replace H2 blockers, the study advised that “Physicians who prescribe omeprazole should be aware of the association of acute interstitial nephritis with omeprazole.”24 Yet Big Pharma waited some 22 years to actually warn about any danger to the kidney and then only added a woefully inadequate warning discussed below. Studies in 2006 and 2007 recognized the potential for a class-wide PPI link to AIN.25 AIN is a frequent cause of Acute Kidney Injury (AKI). AKI is defined as a “sudden decrease in kidney function or kidney damage within a few hours or few days.”26 Decreased blood flow to the kidneys, blockage of the urinary tract, and direct damage to the kidneys can all lead to AKI. Drug induced acute interstitial nephritis is a type of direct damage to the kidney. AKI can also have long-lasting repercussions on a patient’s health including long-term dialysis, stroke, heart disease, increased risk of developing chronic kidney disease, and even death.27 PPIs are further linked to End Stage Renal Disease and Chronic Kidney Disease (CKD). CKD differs from AKI and AIN in that CKD is a long-term kidney disease which results from reduced kidney function that has persisted longer than three months. Comparing a database of 173,321 new PPI users to a group of 20,270 new H2-receptor antagonist users, one study concluded not only that PPIs correlated to a higher incident of CKD and ESRD than people on H2 antagonists, but that the length of time one is on PPIs correlates to a higher incidence of CKD and ESRD as well.28 Quite simply, the longer one consumes PPIs, the greater chance that person has of developing end stage renal disease. Additional studies indicate that the use of PPIs is associated with a 20 percent to 50 percent increase in risk for developing CKD.29 In short, the medical evidence shows a growing connection between the use of PPIs and the development of AIN and CKD. Along these lines, one study concluded that “our results suggest that PPI exposure www.FloridaJusticeAssociation.org | July/August 2016 | 25

MASSTORTS associates with increased risk of incident CKD, CKD progression, and ESRD.”30 Early diagnosis of PPI-induced AIN has a major impact on the long-term prognosis. With an early diagnosis of AKI, stopping the usage of PPIs combined with a course of steroid treatment aids in the recovery process. Even in these cases, however, most patients suffer from lasting chronic kidney disease to some degree.31 Despite swiftly accumulating medical data implicating PPIs as a cause of CKD, AIN, AKI, and ESRD, the product labels for Prilosec and Nexium did not even include a warning for AIN until December 2014. Even more appalling is that there is still no warning pertaining to AKI, CKD, or ESRD to this day. The reason for the delay in reporting this established link is readily apparent. For over two decades, these two drugs have generated vast profits for their manufacturer, AstraZeneca. Those profits would be sure to sharply decline if the public was properly warned about the risk of serious kidney injury associated with the use of these drugs. Practice Tips Naturally, the blatant failure-to-warn about these assorted kidney injuries linked to PPI use has spawned litigation. However, there are several issues to keep in mind when evaluating incoming cases. At the outset, identifying the product is critical. Whether the product was prescription or over-the-counter and, whether the product used was brand name or generic must be thoroughly investigated to determine which manufacturer to include in legal proceedings. Additionally, consumers may have used both brand name and generic products as well as using the prescription and over-the-counter variants. Determining the timing of which product was consumed, the length of time the product was consumed, and the nature of the kidney injury will help link the use of PPI to the injury. You should look to various sources to determine which product your client was using. If prescribed by a doctor, medical records may be an easy way to determine what medication was being taken. Insurance records can also establish dates and types of medication. If over-thecounter, determine the pharmacy that supplied the medication. Often, people will use loyalty cards to obtain discounts on products, so obtain this information early in the process. Finally, determine if the client retained product packaging labels. Medical records should be obtained early in the process to identify the nature of the kidney injury. Determining whether the injury is acute (AKI or AIN) versus chronic (CKD or ESRD) will be your first step in linking PPIs to the injury. As indicated above, studies have linked PPI use to acute kidney injuries and longer term use to chronic kidney injuries. Current Status of Litigation Litigation over PPI-induced kidney injuries is in the early stages, but is growing rapidly. The first federal product liability case was filed on May 3, 2016, and involves the drug Nexium.32 Since that time, additional cases have been filed in both federal and state courts.33 To date, there has been no petition for consolidation of the federal cases filed with the Judicial Panel on Multidistrict Litigation. However, due to the wide-spread use of these drugs and their strong association with kidney injuries, a consolidated action will certainly be required to efficiently handle the anticipated number of cases.34 State-based 26 | July/August 2016 | www.FloridaJusticeAssociation.org

consolidated actions will likely also be required to efficiently process PPI claims. Although these cases span numerous products manufactured by several defendants, the similarity of the injuries, scientific issues, and overlapping discovery should militate in favor of consolidation of the claims, similar to the handling of the Testosterone litigation.35 The hope is that these lawsuits will shed light on the true risks of these products, educate consumers, and provide recompense for people who have suffered debilitating injuries from easily accessible drugs that have been sold to them as “safe” for daily and long-term use. Conclusion When Americans take the “purple pill,” they do so with the expectation of being able to enjoy a consequence free meal. This is, sadly, far from the truth. As has been demonstrated in the past, the pharmaceutical industry’s goal is not the health of the consumer and the safety of the product, but the profit margin for the company. The growing public awareness of the link between PPIs and kidney injury will result in more consumers seeking justice in the civil litigation system. When they contact you, be ready to respond. ________ MedlinePlus, Heartburn Meds Linked to Chronic Kidney Disease, 1/12/2016 https://www.nlm.nih.gov/medlineplus/news/ fullstory_156632.html 2 Interactive Timeline of the Standard American Diet, http://www. nytimes.com/interactive/2011/07/24/opinion/sunday/20110724_ SAD_Timeline.html?_r=0 3 Hurt, et al., The Obesity Epidemic: Challenges, Health Initiatives, and Implications for Gastroenterologists. Gastroenterol Hepatol (N Y). 12/2010; 6(12): 780–792. 4 Lazarus B, Chen Y, Wilson FP, Sang Y, Chang AR, Coresh J, Grams ME (2016) Proton pump inhibitor use and the risk of chronic kidney disease. JAMA Intern Med 176:238-246 5 Internal Clinical Guidelines Team (UK). Dyspepsia and Gastro-Oesophageal Reflux Disease: Investigation and Management of Dyspepsia, Symptoms Suggestive of Gastro-Oesophageal Reflux Disease, or Both. London: National Institute for Health and Care Excellence (UK); 2014 Sep. 6 Eriksson S, Långström G, Rikner L, Carlsson R, Naesdal J. (1995) Omeprazole and H2-receptor antagonists in the acute treatment of duodenal ulcer, gastric ulcer and reflux oesophagitis: a meta-analysis [published correction appears in European Journal of Gastroenterology & Hepatology 1996;8:192]. European Journal of Gastroenterology & Hepatology;7:467–475 7 Id. 8 Brewster UC, Perazella MA (2007) Proton pump inhibitors and the kidney: critical review. Clin Neph, Vol. 68 – No. 2/2007 (6572) 9 Chiba T, Malfertheiner P, Satoh H: Proton Pump Inhibitors: A Balanced View. Front Gastrointest Res. Basel, Karger, 2013, vol 32, pp 1-17 10 Howden CWRJ (1984) Omeprazole, a gastric ‘proton pump inhibitor’: lack of effect on renal handling of electrolytes and urinary acidificatioin. Eur J Clin Pharmacol 26:639-640. 11 http://www.statista.com/statistics/318165/astrazeneca-ad-spend-usa/ 12 Director’s Report: ASTRAZENECA ANNUAL REPORT AND FORM 20-F INFORMATION 2007 1

AstraZeneca Annual Report and Form 20-F Information 2012 https://www.youtube.com/watch?v=UFX-5NPS0LU 15 https://www.youtube.com/watch?v=-mYP7eiz5Co 16 https://www.youtube.com/watch?v=fAfP6d8s4bc 17 http://projects.propublica.org/graphics/bigpharma 18 Id. 19 http://www.corporatecrimereporter.com/fraudrep.pdf 20 https://www.niddk.nih.gov/health-information/health-communication-programs/nkdep/learn/causes-kidney-disease/kidney-disease-basics/Pages/kidney-disease-basics.aspx 21 Brewster UC, Perazella MA (2007) Proton pump inhibitors and the kidney: critical review. Clin Neph, Vol. 68 – No. 2/2007 (6572) 22 Klepser DG, Collier DS, Cochran GL (2013) Proton pump inhibitors and acute kidney injury: a nested case-control study 23 Ruffenach SJ, Siskind MS, Lien YH (1992) Acute interstitial nephritis due to omeprazole. Am J Med 93(4): 472-473 24 Id. 25 Clinical Gastroenterology & Hepatology; Nimeshan Geevasinga; 2006 26 https://www.kidney.org/atoz/content/AcuteKidneyInjury 27 Id. 28 Xie Y, Bowe B, Li T, Xian H, Balasubramanian S, Al-Aly Z, (2016) Proton Pump Inhibitors and Risk of Incident CKD and Progression to ESRD, Journal of the American Society of Nephrology 29 Lazarus B, Chen Y, Wilson FP, Sang Y, Chang AR, Coresh J, Grams ME (2016) Proton pump inhibitor use and the risk of chronic kidney disease. JAMA Intern Med 176:238-246 30 Xie Y, Bowe B, Li T, Xian H, Balasubramanian S, Al-Aly Z, (2016) Proton Pump Inhibitors and Risk of Incident CKD and Progression to ESRD, Journal of the American Society of Nephrology 13 14

Brewster UC, Perazella MA (2007) Proton pump inhibitors and the kidney: critical review. Clin Neph, Vol. 68 – No. 2/2007 (6572) 32 Harry Mason v. AstraZeneca Pharma., et al, S. Dist. of Ill., Case No. 3:16-cv-00493. 33 See Charles Bowers v. AstaZeneca Phrama., et al, W. Dist. of TN, Case No. 2:16-cv-02549, filed on July 5, 2016) 34 http://www.jpml.uscourts.gov/hearing-information, last visited on July 20, 2016. 35 See MDL -2545 IN RE: Testosterone Replacement Therapy Products Liability Litigation, handling 5,873 active cases involving 9 distinct drugs and 19 separate defendants. 31

Christopher G. 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.

Andrew McGraw

is an associate attorney at Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. in Pensacola. Mr. McGraw received his J.D. from Florida State University in 2002. He focuses his practice on products liability cases involving defective drugs and medical devices.

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www.FloridaJusticeAssociation.org | July/August 2016 | 27

MEDICALMALPRACTICE

EDICAL

ALPRACTICE

hird District affirms sanction of fees and costs for failure to comply with presuit expert witness qualification requirements. Bery v. Fahel, So.3d , 2016 WL 3611022 (Fla. 3d DCA 7-6-2016). The trial court dismissed the plaintiff’s medical malpractice suit for failure to comply with statutory presuit requirements. The court ruled that the emergency medicine physician who provided the plaintiff’s presuit expert affidavit was not qualified to testify against the defendant, who was a family practitioner. The Third District Court of Appeal affirmed the dismissal in a previous decision, Bery v. Fahel, 143 So. 3d 962 (3d DCA 2014). On remand, the trial court awarded the defendant fees and costs incurred in responding to the notice of intent to initiate litigation. The Third District affirmed again, holding that under the language of §766.206(2), Florida Statutes, “the failure to provide an adequate corroborating affidavit constitutes a failure to comply with reasonable presuit investigation requirements for an award of fees and costs as a sanction.” Third District quashes part of trial court’s discovery order regarding plaintiff’s consultations with attorneys about potential medical malpractice case. Coffey-Garcia v. South Miami Hospital, Inc., So.3d , 2016 WL 3410415 (Fla. 3d DCA 6-22-2016).

28 | July/August 2016 | www.FloridaJusticeAssociation.org

by Scott R. McMillen & Allison McMillen

The mother of a minor child with cerebral palsy sued several health care providers involved in the child’s birth. Although the child had been born in 2005 and diagnosed with cerebral palsy in 2007, it was not until a few months before the child’s eighth birthday in 2013 that the mother filed a petition to extend the statute of limitations and initiated presuit. To support a statute of limitations defense, the defendants took the mother’s deposition after suit was filed, and asked about her history of consulting attorneys regarding her child’s cerebral palsy. The mother testified that her current attorney was not the first one she had consulted, but refused to answer the defendants’ other questions, citing attorney-client privilege. The trial court granted the defendants’ motion to compel, ordering the mother to “answer all questions related to” the issues of when she sought legal counsel, which attorneys she consulted, and the reasons why she consulted with each one. The mother filed a petition for certiorari. At oral argument, the defendants conceded that the information produced should be limited to consultations regarding the child’s cerebral palsy and related legal remedies. The Third District granted certiorari, noting that the “disclosure of information protected by the attorney-client privilege is well recognized as irreparable harm.” The Third DCA declined to quash the trial court’s order regarding when the mother sought legal counsel and whom she consulted, on the basis that the privilege does

not protect facts known independently by the client, even if they are later communicated to the attorney. However, the Court did quash the part of the order requiring the mother to answer all questions related to why she had consulted with attorneys, on the grounds that it might require her to answer questions about advice or information she had received from counsel. The Third DCA noted that it did not address the issue of whether the information discovered would be probative, and thus admissible, in regard to any issue in the case. Third District holds patient anti-dumping statute does not create duty for hospital to transfer patients to another facility, or cause of action for failure to do so. Morejon v. Mariners Hospital, Inc., So.3d , 2016 WL 3176810 (Fla. 3d DCA 6-8-2016). A patient went to a hospital emergency room with abdominal pain, and was found to have a medical emergency. Staff at the hospital tried to have the patient transferred to a bigger hospital for more specialized care, but the bigger hospital refused the transfer request, and the patient ended up having surgery at the smaller hospital. He and his wife later sued the smaller hospital, alleging that under §395.1041, Florida Statutes, commonly referred to as the “anti-dumping” statute, the hospital had a duty to transfer him in a timely manner, and was liable for damages caused by its failure to do so. The trial court granted the hospital’s motion to dismiss, and the Third District Court of Appeal affirmed the decision. As the Third District explained, the plain language of the statute, which states that a patient “may be transferred” to another hospital in certain conditions, was not sufficient to create a duty to transfer. Since there was no claim that the defendant hospital had refused to treat the patient, the plaintiffs failed to allege patient dumping as contemplated by the statute. The Third District noted that the plaintiffs could have brought a medical malpractice claim but chose not to, and also chose not to appeal the trial court’s denial of their motion to amend the complaint to add a claim for medical malpractice on the grounds that the statute of limitations had run. Second District holds compounding pharmacy owes duty to patient not to fill facially unreasonable prescription without further inquiry; also holds pharmacy licensing statutes do not create private cause of action for their violation. Sorenson v. Professional Compounding Pharmacists of Western Pennsylvania, Inc., So. 3d , 41 FLW D1119 (Fla. 2d DCA 5-11-2016). A visitor from out of state, whose chronic back pain was managed with a pain pump, went to a pain management clinic to obtain a refill of hydromorphone for the pump. The clinic’s doctor prescribed a concentration of 30 mg/mL instead of the 10 mg/mL the patient had always received from his regular doctor. The pain management clinic sent the prescription directly to a compounding pharmacy, where the medicine was compounded as specified and sent back to the clinic. The clinic administered the medication through the pain pump, killing the patient. The patient’s estate sued the pain management clinic, several of its employees, and the compounding pharmacy. Count VI of the complaint alleged that the prescription for 30 mg/mL was unreasonable on its face, and Count VII alleged negligence per se because the pharmacy was not registered or licensed as required by Florida law. The trial court dismissed both

counts for failure to allege a cognizable duty that the pharmacy owed the patient. The Second District Court of Appeal reversed the dismissal of Count VI, holding that a pharmacist’s duty to use due and proper care may go beyond simply filling a prescription as written, if the prescription is unreasonable on its face. Thus, the plaintiff’s allegation that the pharmacy knew or should have known that the prescribed concentration of hydromorphone could kill the patient, but filled it anyway without further inquiry, set forth a cognizable duty on the pharmacy’s part. The Court rejected the pharmacy’s argument that the fact it had no direct contact with the patient meant it did not owe the patient a duty. However, the 2d DCA upheld the trial court’s dismissal of Count VII, holding that the licensing and registration statutes cited to by the plaintiff were not intended to create a private cause of action for their violation. Judge LaRose concurred in part and dissented in part, with a written opinion. Southern District holds defendant’s negligence did not cause patient permanent physical injury but awards $500,000 for pain and suffering. Chiarino v. U.S., F.Supp. 3d , 2016 WL 3083379 (S.D. Fla. 5-31-2016.) The plaintiff sued the government after several Veterans’ Affairs facilities caused an approximately 18-month delay in diagnosis of his bladder cancer. After a bench trial, the District Court for the Southern District of Florida held that the V.A. physicians had breached the standard of care in several ways. However, the Court held that the plaintiff had failed to prove that his treatment would have been any different if the bladder cancer had been diagnosed earlier, or that the delay had decreased his overall chance of survival. The Court did award the plaintiff $500,000 in damages for his pain and suffering between the time the cancer should have been diagnosed and when it was, and for the emotional suffering caused by fear of the cancer’s recurrence for the first two years after diagnosis, until it became apparent that he would beat the odds and survive.

Scott R. McMillen

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

Allison McMillen

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

www.FloridaJusticeAssociation.org | July/August 2016 | 29

PRODUCTSLIABILITY

THE POLITICS & LITIGATION BEHIND THE

ALGAE BLOOM CRISIS OF 2016

by C. Richard Newsome & William C. Ourand

his summer the nation’s airwaves have been awash with photos and videos of South Florida’s latest devastating algae bloom caused by polluted water from Lake Okeechobee. Unfortunately, this year’s algae bloom— which has endangered the health and livelihoods of thousands of Floridians—is the just latest chapter in a decades-long saga involving Lake Okeechobee, the Okeechobee Waterway, the Army Corps of Engineers, the State and Federal Governments, Big Sugar, developers, and politicians. This saga has also been the subject of legal and political battles spanning over thirty years. At the heart of this tortured history lies a theme we often see play out in our products liability and mass tort cases: politics, money, a health crisis, and government officials unwilling to step in and protect regular people. Even though this article isn’t purely about product liability, there are enough common threads that we thought it appropriate for this column. So, this month’s article will provide an overview of the extensive political and legal history that culminated in this year’s environmental catastrophe. The Algae Bloom Lake Okeechobee is one of the country’s largest lakes, and by far the largest lake in Florida. The Okeechobee Waterway is a manmade canal 30 | July/August 2016 | www.FloridaJusticeAssociation.org

that connects the lake to the Atlantic Ocean through the St. Lucie Inlet on the east, and to the Gulf of Mexico just west of Fort Myers. The water level of Lake Okeechobee is managed by the U.S. Army Corps of Engineers through a series of locks that control the outflow of water from the lake to both the east and west. January 2016 was the “wettest January on record” for South Florida.1 The massive rainfall had a severe effect on the Everglades, soaking the many sugar farms and other agricultural lands in the area, and filling Lake Okeechobee to its brink.2 To cope with excess water in the farmlands, the South Florida Water Management District (“SFWMD”) back-pumped “polluted water from flooded farm fields to the south, adding about 15 billion gallons or an inch of water to a lake already running about a foot too high for this time of year.”3 Then, “to protect the lake’s aging dike,” the Army Corps “opened the flood gates” and began to “dump massive amounts of dirty water into two major rivers.”4 Floridians, particularly those residing on the coasts, had good cause for concern over the discharges from Lake Okeechobee.5 The water in the lake contains an excessive amount of nitrogen and phosphorous, culminating in the formation of toxic algae blooms.6 Photographs taken by NASA show that the algae blooms present in Lake Okeechobee this summer were so massive that they could be seen from outer space.7

The initial concerns over the discharges proved to be well-founded. The “vile” and “guacamole-thick” algae which spread from Lake Okeechobee to coastline beaches near Fort Myers and Stuart had a devastating impact on Floridians.8 State health officials warned that people “should stay out of the water when algae blooms are present,” and explained that exposure to algae bloom toxins “can lead to gastrointestinal problems and harm the skin, liver, and nervous system.”9 In addition, businesses reported losing out on thousands of dollars of revenue as the reports of algae left beaches empty during the prime tourist season.10 So what caused the algae blooms? It depends on who you ask. Many put the blame on the Big Sugar and other agricultural businesses that operate in the Everglades, arguing that the phosphorous and nitrogen that forms the algae comes from the fertilizers discharged from the farms.11 Big Sugar and other agribusinesses dispute these claims, instead blaming the pollution on other sources, including septic tanks and runoff from the Kissimmee River.12 Environmentalists have also faulted state and federal regulators for both failing to enact stringent regulations, and for failing to enforce the regulations on the books.13 Governor Scott blamed the federal government for what he deemed to be a “lack of appropriate maintenance” of the dike around Lake Okeechobee.14 The 1988 Litigation, 1992 Settlement, and the Everglades Forever Act In 1988, U.S. Attorney Dexter Lehtinen filed a historic lawsuit that would kick off a wave of litigation that continues to this day.15 The case was filed against the South Florida Water Management District and the Florida Department of Environmental Regulation (the predecessor to the FDEP) in the United States District Court for the Southern District of Florida.16 The complaint alleged “violations of state water quality standards, particularly phosophorus, in the Loxahatchee National Wildlife Refuge and Everglades National Park.”17 Agricultural groups, including the Florida Sugar Cane League, subsequently intervened.18 On May 21, 1991, Governor Chiles walked into the Miami federal courthouse and offered to “surrender,” saying: I came here today convinced that continuing the litigation does little to solve the problems or restore the Everglades. I am more convinced than ever of that ... . We talked about water in the glass. ... I am ready to stipulate today that water is dirty. I think that is [what this is] about, Your Honor, is how do we get clean water? What is the fastest way to do that? I am here and I brought my sword. I want to find out who I can give that sword to and I want to be able to give that sword up and have our troops start the reparation, the clean up . ... We want to surrender. We want to plead that the water is dirty. We want the water to be clean, and the question is how can we get it the quickest.19 The parties subsequently reached a settlement in 1992, under which the Water Management District was obligated to improve water quality and meet specified standards by 2002.20 However, farming groups opposed the settlement’s plan for reducing phosphorous levels, claiming that “the proposal was unduly harsh on them.”21

In the hopes of quelling continued litigation over Lake Okeechobee, the Florida Legislature passed the Everglades Forever Act (“EFA”) in 1994. The EFA differed from the 1992 Settlement by providing a twelve (12) year schedule to bring Lake Okeechobee into compliance with the water quality standards.22 The Eleventh Circuit subsequently reversed and remanded the Southern District’s order approving the 1992 settlement for further consideration “in light of ” the passage of the EFA.23 The parties then continued to fight over the terms of the settlement, and as a result, litigation has continued with respect to the pollution in Lake Okeechobee up through today.24 The Clean Water Act Citizen Suit Against Closter Farms In 1989, one year after US Attorney Lehtinen initiated his action, the Fishermen Against the Destruction of the Environment filed a separate suit against Closter Farms, the large farming operation “headed up by sugar baron Alfonso Fanjul Jr.”25 The lawsuit sought to stop the farm’s practice of “pumping fouled farm drainage water from western Palm Beach County sugarcane fields into the lake.”26 The Fishermen brought their case under the citizen-suit provisions of the Clean Water Act (“CWA”), hoping to force the farm’s practices to be placed under the scope of federal regulation.27 The litigation dragged on for more than a decade. The Fishermen scored an initial victory in 1995, when the Court entered a partial summary judgment determining that a culvert responsible for transferring discharged farm water into the lake was a “point source” within the meaning of the CWA.28 The case then proceeded to a bench trial “to determine whether nonexempt pollutants were in fact being pumped into the lake” through the culvert.29 Following the trial, the District Judge entered Final Judgment in favor of the defendant, stating that “[a]lthough Closter Farms is polluting Lake Okeechobee, it has complied with the established legislative scheme.”30 The Eleventh Circuit affirmed the Judgement in favor of Closter Farms the next year.31 The issue on appeal was whether the discharges fit the CWA’s exemption for “agricultural stormwater discharges and return flows from irrigation agriculture.”32 The Court determined that the farm’s discharges did meet this exemption and ultimately concluded that “any pollutants that originated within Closter Farms can be discharged into Lake Okeechobee by Closter Farms without an NPDES permit.”33 Environmentalists Lose Some, Win Some in SFWMD Back-Pumping Litigation In 2002, the Friends of the Everglades and the Fishermen Against the Destruction of the Environment filed a lawsuit which specifically sought to require the SFWMD to obtain a permit before engaging in back-pumping at certain locations. Although the plaintiffs named SFMWD as the sole defendant, U.S. Sugar and other entities were granted permission to intervene in the case.34 In defense of the practice of back-pumping, the SFWMD argued that the transfer of “one navigable water to another navigable water (where the water that is being transferred contains a pollutant)” did not constitute the “addition” of a pollutant under the CWA, and thus www.FloridaJusticeAssociation.org | July/August 2016 | 31

PRODUCTSLIABILITY did not require a permit.35 This argument is based on the so-called “unitary waters theory.”36 The plaintiffs prevailed after a two (2) month bench trial, at the conclusion of which the Court expressly rejected the unitary waters theory.37 The Court subsequently entered a declaratory judgment order stating that it is a violation of the CWA to use the pumps at issue to back-pump water into the lake.38 Shortly after the District Court’s ruling, the EPA passed the “NPDES Water Transfers Rule,” which became final on June 13, 2008.39 Through the Water Transfer Rule, the EPA effectively sought to bless the SFWMD’s losing argument premised on the unitary waters theory. The EPA did so by including a statement that “water transfers are not subject to regulation,” and by defining “water transfers as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use.”40 Armed with the EPA’s new Water Transfer Rule, the SFWMD sought a reversal of the District Court’s 2006 Order from the Eleventh Circuit.41 Despite acknowledging that “all of the existing precedent and the statements in our own vacated decision are against the unitary waters theory,” the Eleventh Circuit ruled in favor of SFWMD.42 The Court explained its ruling by stating that although it may very well have ruled differently in the absence of the Water Transfer Rule, the EPA’s determination was entitled to Chevron deference.43 The Eleventh Circuit’s 2009 decision is not the last word on the matter. Earth Justice filed a separate lawsuit challenging the practice of backpumping into Lake Okeechobee through a different set of pumps, and this action was consolidated with other cases dealing with similar issues which were pending in the Southern District of New York.44 Like the Eleventh Circuit, the New York District Court conducted a Chevron analysis of the Water Transfer Rule. However, the New York District Court came to the exact opposite conclusion with respect to the reasonability of the rule, determining instead that the “EPA’s justification does not hold water,” and as such, the Water Transfer Rule “cannot stand.”45 The defendants appealed the New York District Court’s ruling, and the Second Circuit heard oral arguments on December 1, 2015, but has not yet issued a ruling. The Second Circuit has the potential to create a circuit split by affirming the District Court’s order, setting the stage for a Supreme Court ruling on the Water Transfer Rule. The 2009 Consent Decree: Feds Defer to the State; State Loosens the Standards The algae blooms and other environmental problems plaguing Lake Okeechobee are unfortunately part of a much larger problem that affects waterways throughout the state. Many contend that the pollution problems seen in our state’s waters are a direct result of failures by both state and federal regulators to enact effective water quality standards. In 2008, environmental groups filed an action in the U.S. District Court for the Northern District of Florida seeking to force the EPA to set “numeric,” rather than “narrative,” standards for phosphorous and nitrogen in Florida’s lakes and rivers.46 For illustrative purposes, the difference between a “numeric” and “narrative” standard can be 32 | July/August 2016 | www.FloridaJusticeAssociation.org

thought of as a speed limit of 50 miles per hour as opposed to a speed limit in the form of an admonition to “not drive too fast.”47 Thirteen (13) months after the case was filed, the plaintiffs entered into a Consent Decree with the EPA, which was in turn approved by the Court in December 2009.48 Under the terms of the Consent Decree, the EPA was required to publish proposed regulations for numeric quality standards by January 14, 2010.49 However, the Consent Decree further provided that this requirement did not apply if the State were to submit new or revised water quality standards on or before January 14, 2010.50 In which case, the EPA could simply approve the standards submitted by the State, rather than submitting the EPA’s own proposed standards.51 Following multiple extensions to the original deadline contemplated in the Decree, the FDEP developed new criteria, and the EPA sought to adopt the State’s standards wholesale rather than promulgating its own standards.52 The plaintiffs to the 2008 litigation objected to the EPA’s action, arguing that it violated the Consent Decree because many of the State’s standards were not numeric, and that “even some of the criteria that the state and the EPA label ‘numeric’ are not.”53 The Court rejected the plaintiffs’ arguments, and allowed the EPA to modify the consent decree to allow for the adoption of the State’s criteria.54 As a result, the EPA essentially deferred to the State with respect to water quality standards throughout Florida. The State, in turn, acted quickly to loosen the requirements. The very first piece of legislation signed into law during the January 2016 Legislative term was a massive change to Florida’s water laws.55 Among other things, this legislation adopted and applied the so-called “best management practices” for agricultural operations in the Lake Okeechobee area.56 Under this scheme, an agricultural farmer is afforded “a presumption of compliance with state water quality standards” as soon as they file a “notice of intent to implement a best management practice”—“even if no action is taken.”57 Several environmental groups have severely criticized the 2016 water bill. They contend that, under the new bill, “farms that send runoff into Lake Okeechobee will only need a permit to restrict the quantity being discharged—not the amount of fertilizer crud in it.”58 They further fault the best management practices as being “mostly voluntary, and devised by the agriculture lobby.”59 In short, they argue that the new water quality standards essentially place the “agricultural operations around Lake Okeechobee” on “the honor system.”60 Promising Land Deal Falls Through Governor Charlie Crist announced a landmark deal in 2008 that had the potential to greatly mitigate the pollution concerns in the Everglades and Lake Okeechobee.61 Under the initial proposal, the State of Florida would purchase and preserve up to 187,000 acres—an area of land about three times the size of Orlando—for $1.7 billion.62 The purchased land would then be used to restore water flow south of Lake Okeechobee and into the Everglades, significantly reducing the amount of water that would need to be discharged into the rivers and towards the coasts.63 Over the next few years the scope of the proposed land buy shrank down to 46,800 acres, at a price of approximately $500 to $700

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www.FloridaJusticeAssociation.org | July/August 2016 | 33

PRODUCTSLIABILITY million dollars.64 Then, in May 2015, SFWMD officials announced that they would not go forward with the purchase, describing it as a “bad deal” that “would have taken billions of dollars away from needed restoration projects.”65 Environmentalists have strongly refuted the claim that the land purchase is a “bad deal,” pointing out that securing the sugar farm property would pave the way to create vital reservoirs to store water from Lake Okeechobee.66 These arguments were bolstered by a recent report prepared by the University of Florida, which called for an “enormous” increase in water storage to the south and north of Lake Okeechobee.67 The report also pointed out that the continuing failure to meet the water storage needs will have dire consequences, as “the coupled human-ecological system is continuing to degrade in ways that may not be reversible.”68 Additionally, some have argued that the State’s failure to fund the sugar land purchase contravenes the intent of Florida’s voters, who overwhelmingly supported Amendment 1.69 That Amendment, which received a voter approval rate of 75 percent in November 2014, requires the Legislature to dedicate certain specified funds “to acquire and restore Florida conservation and recreation lands.”70 The chair of Florida’s Water and Land Legacy (“FWLL”), the committee that sponsored Amendment 1, spoke out in favor of the land purchase, stating that, “Everglades restoration is clearly one of the main purposes of Amendment 1,” and that the “purchase of the land south of Lake Okeechobee is a critically important component of restoring the Everglades.”71 Environmentalists claim that the Legislature has violated Amendment 1 by failing to set aside the required funds for land preservation and conservation.72 Instead, they claim, the Legislature used funds from “Amendment 1 to pay for existing services,”73 and that “more than half of [the] money available will be spent on accounting gimmicks.”74 Leaders in the Legislature refute these claims, arguing that the “acquisition” of lands is only one of the purposes for the conservation funds covered by Amendment 1, and that they properly allocated funds in accordance with the law.75 These arguments will likely be resolved through litigation. In June 2015, Earth Justice filed a lawsuit against the President of the Florida Senate and Speaker of the Florida House of Representatives seeking to enforce compliance with Amendment 1.76 That action, styled the Florida Wildlife Federation v. The Florida Legislature, is currently pending in the Circuit Court for the Second Judicial Circuit, In and For Leon County, Florida.77 Conclusion The algae bloom of 2016 was the direct and predictable result of a system that has consistently placed business and political interests over the interests of ordinary citizens and the environment. Unfortunately, Floridians can expect no solutions to this problem in the near future. Until businesses, politicians, and other key players are forced to take dramatic action to change the status quo, algae blooms will continue to happen. Businesses on the coast that depend upon tourism and fishing will be devastated. People who live near the water in Fort Myers and Stuart will have potential health risks. And Florida’s famous beaches, estuaries, and fish stocks will continue to decline to the point of no return.

34 | July/August 2016 | www.FloridaJusticeAssociation.org

_________ 1 Lydia Stefanova & David F. Zierden, Climate Summary for Florida-January 2016, Florida Climate Center; The Florida State University, available at https://climatecenter.fsu.edu/products-services/summaries/climate-summary-for-florida-january-2016. 2 Jenny Staletovich, Record Rain Raises Concerns About Lake Okeechobee, Miami Herald, available at http://www.miamiherald. com/news/local/environment/article58020798.html (Feb. 2, 2016). 3 Id. 4 Id. 5 Id. 6 Avianne Tan, Here’s What’s causing the Toxic Aglae Blooms Infesting Florida’s Coastlines and Waterways, ABC News, available at http://www. sun-sentinel.com/local/palm-beach/fl-lake-okeechobee-algae-bloom20160517-story.html (July 5, 2016). 7 Marisa Gertz, Satellite Images Show Massive Algae Blooms Taking Over Florida Lake, Time, available at http://time.com/4394608/florida-algae-bloom-satellite-images/ (July 6, 2016); Andy Reid, Lake Okeechobee Aglae Bloom Threatens to Worsen Water Woes, SunSentinel, available at http://www.sun-sentinel.com/local/palm-beach/fl-lake-okeechobeealgae-bloom-20160517-story.html (May 23, 2016). 8 Eva Pilgrim & Avianne Tan, Toxic Algae Blooms Infesting Florida Beaches Are Putting a Damper on 4th of July Celebrations, ABC News, available at http://abcnews.go.com/US/toxic-algae-blooms-infesting-florida-beaches-putting-damper/story?id=40326610 (July 4, 2016). 9 Andy Reid, Lake Okeechobee Algae Bloom Threatens to Worsen Water Woes, Sun Sentinel, available at http://www.sun-sentinel.com/local/ palm-beach/fl-lake-okeechobee-algae-bloom-20160517-story.html (May 23, 2016). 10 Mayra Cuevas, Toxic Algae Bloom Blankets Florida Beaches, Prompts State of Emergency, CNN, available at http://www.cnn. com/2016/07/01/us/florida-algae-pollution/ (July 1, 2016). 11 Lily Henkel, Algae Causes State of Emergency in Florida, FSUNews. com, available at http://www.fsunews.com/story/news/2016/07/05/ algae-causes-state-emergency-florida/86730942/ (July 5, 2016). 12 Frank Gluck, Big Sugar Defends Role in Lake O Discharges, 10 News, available at http://www.wtsp.com/news/local/florida/big-sugardefends-role-in-lake-o-discharges/83477881 (May 15, 2016). 13 David Guest, South Florida’s Tourist Season From Hell, EarthJustice, available at http://earthjustice.org/blog/2016-february/southflorida-s-tourist-season-from-hell (March 2, 2016). 14 Bill Smith, Gov. Scott Blames Feds, Asks for Lake O Emergency, News-Press.com, available at http://www.news-press.com/story/ news/local/lehigh/2016/07/06/gov-rick-scott-blames-feds-asks-lakeo-emergency/86769386/ (July 7, 2016). 15 See Keith W. Rizzardi, Alligators and Litigators: A Recent History of Everglades Regulation and Litigation, FL. Bar. J., Vol. LXXV, No. 3, p. 18 (March 2001) 16 Id. 17 Id. 18 Id. 19 Id. 20 United States v. S. Florida Water Mgmt. Dist., 847 F. Supp. 1567, 1569 (S.D. Fla. 1992). 21 Miccosukee Tribe of Indians of Florida v. United States, 04-21448-

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PRODUCTSLIABILITY

CIV, 2011 WL 1624977, at *5 (S.D. Fla. 2011). 22 Id. (construing Fla. Stat. §373.4592). 23 Id. 24 See USA, et al. v. South Florida Water, et al., Case No:1:88-cv01886-FAM (S.D.F.L.) (containing the original docket for the 1988 action, with fillings occurring up through the summer of 2016); see also Miccosukee Tribe of Indians of Florida v. United States, 04-21448CIV, 2011 WL 1624977, at *5 (S.D. Fla. 2011) (observing that the commitments in the 1992 settlement “fell through, as the present and ongoing litigation continues”). 25 Robert McClure, Fisehrmen Sue Sugar Grower Over Pollution, SunSentinel, available at http://articles.sun-sentinel.com/1989-1021/news/8902050431_1_farm-water-polluted-water-clean-water-act (originally published Oct. 21, 1989) 26 Id. 27 Id. 28 See F.A.D.E. v. Closter Farms, Inc., 89CV8517, 2001 WL 838437, at *1 (S.D. Fla. 2001) (describing the history of the litigation). 29 Id. 30 Id. at 2. 31 Fishermen Against Destruction of Env’t, Inc. v. Closter Farms, Inc., 300 F.3d 1294 (11th Cir. 2002). 32 Id. (construing 33 U.S.C. § 1362(14)). 33 Id. at 1297-98. 34 Friends of Everglades, Inc. v. S. Florida Water Mgmt. Dist., 64 ERC 1914, 1 (S.D. Fla. 2006). 35 Id. at 38-39. 36 Id. 37 Id. at 61. 38 Id. 39 National Pollutant Discharge Elimination System (NPDES) Water Transfers Rule, 73 FR 33697-01. 40 Id. 41 Friends of Everglades v. S. Florida Water Mgmt. Dist., 570 F.3d 1210 (11th Cir. 2009). 42 Id. at 1218. 43 Id. at 1228. 44 See Catskill Mountains Chapter of Trout Unlimited, Inc. v. U.S. E.P.A., 8 F. Supp. 3d 500 (S.D.N.Y. 2014). 45 Id. at 567. 46 See Florida Wildlife Federation, Inc. v. Jackson, Case No. 4:08-cv00324, D.E. 1 (N.D.F.L. July 2008). 47 See Florida Wildlife Fed’n, Inc. v. McCarthy, 78 ERC 1496 (N.D. Fla. 2014). 48 Florida Wildlife Fed’n, Inc. v. Jackson, 71 ERC 1563 (N.D. Fla. 2009). 49 Florida Wildlife Fed’n, Inc. v. Jackson, Consent Decree, Case No.: 4:08-cv-00324, p. 4. (N.D. Fla. 2009). 50 Id. at 4-5. 51 Id. 52 Florida Wildlife Fed’n, Inc. v. McCarthy, 78 ERC 1496 (N.D. Fla. 2014). 53 Id. 54 Id. 55 Senate Bill 552, available at https://www.flsenate.gov/Session/ Bill/2016/0552. 56 Id. 36 | July/August 2016 | www.FloridaJusticeAssociation.org

Everglades Foundation, Our Take On: The Lake Okeechobee Basin Management Action Plan, available at http://www.evergladesfoundation.org/2016/03/09/our-take-on-the-lake-okeechobee-basin-management-action-plan/ (March 9, 2016). 58 Carl Hiaasen, Polluters Win Again in State Legislature, Panama City News Herald, available at http://www.newsherald.com/opinion/20160118/hiaasen-polluters-win-again-in-state-legislature (July 8, 2016). 59 Id. 60 David Guest, South Florida’s Tourist Season From Hell, EarthJustice, available at http://earthjustice.org/blog/2016-february/southflorida-s-tourist-season-from-hell (March 2, 2016). 61 Paul Brinkman, U.S. Sugar to Sell Land, Wind Down Operations, South Florida Business Journal, available at http://www.bizjournals.com/southflorida/stories/2008/06/23/daily11.html (June 23, 2008). 62 Id. 63 Carolina Bolado, US Sugar’s Plan Could Bog Down Everglades Restoration, Law360, available at http://www.law360.com/articles/579122/us-sugar-s-plan-could-bog-down-everglades-restoration (Sep. 22, 2014). 64 Jenny Staletovich, Big Sugar Land Buy for Everglades Restoration Hits Road Block, Miami Herald, available at http://www.miamiherald.com/news/local/environment/article17992718.html (April 9, 2015) 65 Id.; Jenna Buzzacco-Foerster, SFWMD Responds to Criticism Over Blue-Green Algae Blooms, Florida Politics, available at http://floridapolitics.com/archives/215050-sfwmd-responds-criticism-blue-green-algae-blooms (June 29, 2016). 66 Carl Hiaasen, Big Sugar Weasels Out of Land Deal, Florida Today, available at http://www.floridatoday.com/story/opinion/2015/05/09/hiaasen-big-sugar-weasels-land-deal/70939526/ (May 11, 2015); Ray Judah, Big Sugar’s Flip Flop, Tampa Tribune, available at http://www.tbo.com/list/news-opinion-commentary/ ray-judah-big-sugars-big-flip-flop-20150323/ (March 23, 2015). 67 Wendy D. Graham, et al., Options to Reduce High Volume Freshwater Flows to the St. Lucie and Caloosahatchee Estuaries and Move More Water from Lake Okeechobee to the Southern Everglades, University of Florida Water Institute, pp. 130-34, available at https://www.flsenate.gov/UserContent/Topics/WLC/UF-WaterInstituteFinalReportMarch2015.pdf (March 2015). 68 Id. at 10. 69 Editorial Board, Reconsider Purchase of U.S. Sugar Lands, Sun Sentinel, available at http://www.sun-sentinel.com/opinion/editorials/fl-editorial-everglades-sugar-land-20150611-story.html (June 11, 2015); Carl Hiaasen, Big Sugar Weasels Out of Land Deal, Florida Today, available at http://www.floridatoday.com/story/opinion/2015/05/09/hiaasen-big-sugar-weasels-land-deal/70939526/ (May 11, 2015); Ray Judah, Big Sugar’s Flip Flop, Tampa Tribune, available at http://www.tbo.com/list/news-opinion-commentary/ ray-judah-big-sugars-big-flip-flop-20150323/ (March 23, 2015). 70 The Florida Water and Land Conservation Amendment, available at http://floridawaterlandlegacy.org/sections/page/amendment (last visited July 10, 2016). 71 Amendment 1 Coalition Supports U.S. Sugar Land Purchase, Florida’s Water & Land Legacy, available at http://floridawaterlandlegacy.org/sections/press/5523d34875c9a1755100000a (April 7, 2015). 57

72 David Guest, Conservation Groups File Amendment One Lawsuit in Florida, Earth Justice, available at http://earthjustice.org/ news/press/2015/conservation-groups-file-amendment-one-lawsuit-in-florida (June 22, 2015).

Michael Van Sickler, Voters Suggest Amendment 1 Funds Were Supposed to be Spent Acquiring Land, Tampa Bay Times, available at http://www.tampabay.com/news/politics/stateroundup/voterssuggest-amendment-1-funds-were-supposed-to-be-spent-acquiringland/2222817 (March 25, 2015). 74 Roger Williams, Lost in Translation: Whatever Happened to Amendment 1, Florida Weekly, available at http://fortmyers. floridaweekly.com/news/2016-04-20/Top_News/Lost_in_translation_whatever_happened_to_Amendment.html (April 20, 2016). 75 Id. 76 Id. 77 Case No.: 2015-CA-001423. 73

C. Richard Newsome is the managing partner of the Newsome Law Firm, representing consumers who have been catastrophically injured by defective products. Mr. Newsome has published dozens of articles about the law and practice of product liability litigation that have received national recognition. Mr. Newsome was the 2010 – 2011 FJA President.

William C. Ourand, Jr. Will Ourand graduated magna cum laude from the Florida State University College of Law where he served for two years on the editorial board of the Law Review. After graduation, he was inducted into the Florida State Chapter of the Order of the Coif. He is currently an associate at Newsome Melton, where he represents consumers in products liability and class action lawsuits.

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www.FloridaJusticeAssociation.org | July/August 2016 | 37

WORKERS’COMPENSATION

RECENT CASES by Richard A. Sicking

Limitation of 104 Weeks on Temporary Total Disability is Unconstitutional On July 7, 2016, the Supreme Court of Florida entered a corrected opinion in Bradley Westphal v. City of St. Petersburg, Florida Supreme Court Case No. 13-1930. This corrected opinion replaces the original opinion of June 9, 2016. The corrections made were of some typographical errors and miscites. The conclusion remains the same: For all the reasons explained in this opinion, we hold section 440.15(2)(a), Florida Statutes (2009), unconstitutional as applied to Westphal and all others similarly situated, as a denial of access to courts under article I, section 21, of the Florida Constitution. Westphal, corrected slip, July 7, 2016, at 33. Therefore, the limitation on temporary total disability is the 260 weeks provided for in the previous statute (1990). Bradley Westphal was a firefighter employed by the City of St. Petersburg who severely injured his back in December of 2009. He had not reached maximum medical improvement and was totally unable to work at 104 weeks after the accident. He was recovering from a spinal fusion done just a few months before the 104 weeks anniversary. The City of St. Petersburg cut off his temporary total disability at 104 weeks as provided in Sec. 440.15(2)(a), Fla. Stat. (2009). In 1968, the people of Florida voted for a new constitution which contained an “Access to Courts” provision in Article I, Section 21. At that time, the applicable Florida Workers’ Compensation Law was the 1967 statute, which provided for up to 350 weeks of temporary disability. In 1990, this was reduced to 260 weeks and in 1994, to the present 104 weeks (which is 70 percent less!).

38 | July/August 2016 | www.FloridaJusticeAssociation.org

OF NOTE

The “Access to Courts” provision was explained by the Supreme Court of Florida’s decision, Kluger v. White, 281 So.2d 1 (Fla. 1973), in which the Court held that the common law and statutory remedies that existed in 1968 cannot be abolished by the Florida Legislature, except for an overpowering public necessity and the Legislature must provide a reasonable alternative. The Court gave an example of such a statutory remedy, the Florida Workers’ Compensation Law. The three-judge panel of the First District Court of Appeal rendered an opinion written by Judge Thomas that the 104-week limitation on temporary total disability was prospectively unconstitutional as applied in violation of the “Access to Courts” provision of the Florida Constitution. The case is reported in the Florida Law Weekly as Bradley Westphal v. City of St. Petersburg, “38 FLW D504 (1st DCA Feb. 28, 2013)”. Both the State and the City of St. Petersburg filed for rehearing and rehearing en banc. The majority in the en banc decision receded from Matrix Employee Leasing, Inc. v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2011), now holding that an employee who has not reached maximum medical improvement in fact prior to 104 weeks after the accident, reaches maximum medical improvement as a matter of law at 104 weeks and if unable to work at that point, the employee is entitled to claim permanent total disability. The dissenters accused the majority of engaging in judicial legislation by creating “temporary permanent total disability”. However, the majority did certify the question to the Supreme Court of Florida, which accepted jurisdiction. The en banc decision was reversed. The majority opinion was written by Justice Barbara Pariente. The Supreme Court explained the reason for the holding: …benefits have progressively been reduced over the years and the statutory scheme changed to the detriment of the injured worker.

But, there must eventually come a ‘tipping point,’ where the diminution of benefits becomes so significant as to constitute a denial of benefits–thus creating a constitutional violation. We accordingly must review what has occurred to the workers’ compensation system since the 1968 adoption of the access to courts provision, as it relates to providing ‘full medical care and wage-loss payments for total or partial disability regardless of fault,’ Martinez, 582 So. 2d at 1172, in order to determine whether we have now reached that constitutional ‘tipping point.

There were two companion cases to Westphal involving temporary partial disability for which the Supreme Court had entered stay orders pending Westphal, but now the Court has issued a rule to show cause to the employer/carrier as to why the cases should not be reversed on authority of Westphal.

*** Although Westphal has not argued at length that this Court should declare the entire workers’ compensation law unconstitutional, the statutory gap cannot be viewed in isolation from the remainder of the statutory scheme. Over the years, there has been continuous diminution of benefits and other changes in the law. [many examples were given].

Justice Lewis wrote a scathing concurring opinion that the Florida Workers’ Compensation Law is invalid and the Legislature needs to redo the whole law.

Westphal v. City of St. Petersburg, corrected slip, at 25-30. It remains to be seen in later cases what “all others similarly situated” in the holding means.

There is also one noticeable difference between the panel decision and the Supreme Court decision. The panel decision was unconstitutional as applied prospectively whereas the Supreme Court decision does not have that limitation.

He wrote: Florida needs a valid Workers’ Compensation program, but the charade is over. Enough is enough, and Florida workers deserve better. Westphal, corrected slip, at 37. Justices Canaday and Polston dissented.

The Judge of Compensation Claims does not have the jurisdiction to decide constitutional questions. Obviously, if he decides a case which is factually identical to Westphal, he would only be following the Westphal decision in awarding benefits, not deciding a constitutional question. The same should also be true of any case that he determines factually is “similarly situated.” Otherwise, it would be necessary to go to the First District Court of Appeal in order to get a case decided as “unconstitutional as applied.”

Richard A. Sicking is a shareholder in the law firm of Touby, Chait & Sicking, PL. He is general counsel of the Florida Professional Firefighters’ Union. He was lead appellate counsel for the Westphal and Castellanos cases in the Supreme Court of Florida. Mr. Sicking practices in the areas of plaintiff’s workers’ compensation, public employee pensions and social security disability. He has been Board Certified in Workers’ Compensation Law since 1988.

The other take-aways by the Legislature described by the Supreme Court of Florida in Westphal, on pages 25, 30, are arguably also beyond the tipping point.

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EVIDENCE

EVIDENCE by Matt Schultz

TRIAL NOTEBOOK: Hearsay Exceptions – State of Mind (§803(3)) The provisions of §90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness: (3) THEN-EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION.— (a) A statement of the declarant’s then-existing state of mind, emotion, or physical sensation, including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health, when such evidence is offered to: 1. Prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action. 2. Prove or explain acts of subsequent conduct of the declarant. (b) However, this subsection does not make admissible: 1. An after-the-fact statement of memory or belief to prove the fact remembered or believed, unless such statement relates to the execution, revocation, identification, or terms of the declarant’s will. 2. A statement made under circumstances that indicate its lack of trustworthiness. •

For statements regarding then-existing physical condition, the hearsay statement must be made at the time the sensation is experienced. Statements describing one’s past condition or medical history are excluded. Spontaneity lends trustworthiness to the statement. Ehrhardt, Fla. Evidence §803.3 at 1030 (2016).

• Regarding mental state: “If a person testifies during the trial as to his or her state of mind at a particular time, the testimony is not hearsay. There is no testimony concerning out-of-court statements.” Id. at 1030-31.

40 | July/August 2016 | www.FloridaJusticeAssociation.org

• The declarant’s intent or state of mind must be an issue in the case or it must be offered to explain subsequent conduct. A statement of intent to do something in the future is evidence supporting the inference that it was done. Id. at 1036. • A decedent’s statements relating to the execution or revocation of a will are admissible regardless of whether they are made before or after the act because the deceased declarant’s unavailability creates the need for such an exception. Id. at 1039. Caselaw In a conspiracy and fraud case, a deceased smoker’s wife could testify to his statements that smoking was not a problem, that Kent cigarettes were safe because of their filters, that he believed the tobacco companies because they knew their products best, and that he did not believe they would make a product that would kill anyone all were admissible on the issue of detrimental reliance on the defendant’s marketing and public relations messages. The statements “were not after-the-fact statements of why Coleman smoked in the past, rather they were statements as to why Coleman continued to smoke at that time.” Lorillard Tobacco Co. v. Alexander, 123 So.3d 67, 75 (Fla. 3d DCA 2013). Evidence of other similar acts is admissible in a medical malpractice case “for the purposes of showing the defendant’s state of mind and for impeachment.” Maercks v. Birchansky, 549 So.2d 199, 200 (Fla. 3d DCA 1989) (citing Metropolitan Dade County v. Cox, 453 So. 2d 1171, 1172-75 (Fla. 3d DCA 1984)). A victim’s statement on the day of her murder that she was going to Publix was admissible to prove that she went to the supermarket. It was evidence proving declarant’s subsequent conduct and did not lack trustworthiness. Huggins v. State, 889 So.2d 743, 757 (Fla. 2004). A witness’s pretrial statement to police that he would change his identification testimony out of fear of defendant was admissible to explain his subsequent conduct in repeatedly claiming he was uncertain about his identification. Lopez v. State, 716 So.2d 301, 304-05 (Fla. 3d DCA 1998). RECENT CASES OF INTEREST NOTE: Recent cases may not be released for publication. “[E]vidence of ‘possible explanations’ for the plaintiff’s harm other than the defendant’s negligence is relevant and must be admitted.” Not so fast: “To establish the relevance of particular alternative-causation evidence, however, the defendant must provide a competent evidentiary link between the plaintiff’s harm and the defendant’s theory.” The court cited Sidran v. E.I. Dupont Nemours & Co., 925 So.2d 1040 (FIa. 3d CA 2006), which properly excluded an “expert opinion that contaminated water, rather than the defendant’s fungicide, could have damaged the plaintiffs’ orchids, where there was no competent scientific evidence to support a finding that the level of contaminants present in the plaintiffs’ water was harmful. This threshold requirement exists as a function of the relevance rule, even though the defendant does not carry a quantifiable burden of proof as to the alternative explanation.” Arizona Chem. Co., LLC v. Mohawk Indus., 41 FLW D1213, 2016 WL 2941121 (Fla. 1st DCA 5-20-16). Statement of identification qualifies as a spontaneous statement. A witness was permitted to testify that shortly after stabbing, the

victim pointed to a man and said “that’s him.” The trial court properly overruled defendant’s hearsay objection: “The statement made by Mr. Hernandez clearly qualifies as a ‘spontaneous statement’ because he made the statement—‘That’s him’—as he was perceiving and pointing at the man in the camouflage shirt. Further, the statement was not made under circumstances that indicate its lack of trustworthiness. Darnell v. State, 41 FLW D1187, 2016 WL 2901560 (Fla. 3d DCA 5-18-16). Daubert amendment applies retrospectively. The Fourth DCA upheld (without explanation) the exclusion of plaintiff’s causation expert’s “pure opinion” testimony in a Zicam case where plaintiff lost her sense of smell. The court agreed with the Third DCA’s Perez opinion that the Daubert amendment “relates to the admission of evidence” and is therefore procedural and applies retrospectively. The court notes that plaintiff did not challenge the constitutionality of the amendment. Bunin v. Matrixx Initiatives, Inc., 2016 WL 3090777 at *1 (Fla. 4th DCA 6-1-16). Statements in medical records regarding particulars of an accident are exceptions to the hearsay rule. Reversing a summary judgment in a personal injury case, the Fourth DCA held that statements in the medical records regarding the height from which a child fell from a jungle gym were relevant to diagnosis and treatment and therefore admissible under §90.803(4): “The appellee argues that the fact that the child fell from a certain height is not relevant to his diagnosis or treatment, but we disagree. The fact that a patient fell from a height, as opposed to falling while running on the ground, is important information for purposes of medical diagnosis. Thus, the statements in the medical reports regarding falling from a height several feet off the ground are admissible ….” Bogatov v. City of Hallandale Beach, 41 FLW D1252, 2016 WL 3002329 (Fla. 4th DCA 5-25-16). Business records certification is timely where written notice is provided six weeks before trial and the certification is filed three weeks before trial. By failing to conduct a deposition of the certifying records custodian or otherwise object before trial, objections were waived and the records were admissible under §§90.803(6) and 90.902(11). Wilmington Sav. Fund Soc., FSB v. Aldape, 41 FLW D1257, 2016 WL 3030833 (Fla. 5th DCA 5-27-16). GPS data are hearsay. This was a VOP case where the probation officer testified that she had no personal knowledge of defendant’s whereabouts, but that his GPS ankle bracelet data conflicted with his driving logs. The “3M GPS data were offered to prove the truth of the matter asserted, namely that Laing was at the specific locations reported by 3M at particular times on particular dates. This is definitive hearsay.” Laing v. State, 2016 WL 3458768 at *2 (Fla. 5th DCA 6-24-16).

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FJA Membership Department at (850) 521-1093.

www.FloridaJusticeAssociation.org | July/August 2016 | 41

CIVILPROCEDURE

CIVIL PROCEDURE: TRIAL COURTS HAVE AUTHORITY TO REEMPANEL DISMISSED JURY TO CORRECT MISTAKE IN VERDICT by Roy D. Wasson

any trial lawyers have seen jurors make mistakes in verdicts which need to be corrected. Such mistakes appear in situations such as math errors in adding elements of damages and failure to award certain damages that are stipulated. One such mistake that I saw in a recent verdict involved the jury's reduction of the economic damage by the percentage of comparative negligence it found instead of heeding the court’s instructions to allow the judge to make the reduction in the judgment. While the usual remedy in such a situation is to reinstruct the jury and send it back for further deliberations, until a recent decision of the Supreme Court of the United States, there has been no real remedy for such a mistake short of grant of a new trial once the jury has been discharged and vacated the courtroom. However, in Dietz v. Bouldin, 195 L. Ed. 2d 161 (2016), the Supreme Court approved a decision of the Ninth Circuit Court of Appeals affirming the trial judge’s decision to recall the jury for further deliberations after the jurors had been discharged and left the courtroom. The Dietz case involved a run-of-the-mill intersectional collision resulting in injuries to the plaintiff’s lower back. During trial, the defendant admitted liability and “stipulated that Dietz’ medical expenses of $10,136 were reasonable and necessary as a result of the collision.” During deliberations, the jury sent a note asking: “Has the $10,136 medical expenses been paid; and if so, by whom?” Id. at 168. The parties agreed that the judge should instruct the jury “that the information that they sought was not relevant to the verdict.” Id. Thereafter, “[t]he jury returned a verdict in Dietz’ favor but awarded him $0 in damages. The judge thanked the jury for its service and ordered them ‘discharged,’ telling the jurors were ‘free to go.’” Id. A few minutes after the jurors left, the trial judge became aware of the fact that the jury had mistakenly failed to award at least the amount of damages that defense counsel had stipulated were reasonable and necessary. Within a few minutes of discharging the jurors, the judge directed the clerk to round them up and bring them back to the courtroom. Only one juror had left the building, and the rest were located within the courthouse. 42 | July/August 2016 | www.FloridaJusticeAssociation.org

Addressing the parties, the trial judge “suggested two alternatives: (1) order a new trial or (2) reempanel the jurors, instructing them to award at least the stipulated damages, and ordering them to deliberate anew.” Id. at 169. The plaintiff’s attorney objected to reempaneling the discharged jurors, arguing that a new trial should be granted. However, “the judge explained that he would ‘hate to just throw away the money and time that’s been expended in this trial,’” and interviewed the jurors to make sure that they had not spoken to anyone about the case. Id. The judge then “explained to the jurors the mistake in not awarding the stipulated damages. He informed the jurors that he was reempaneling them and would ask them to start over with clarifying instructions. He asked the jurors to confirm that they understood their duty and to return the next morning to deliberate anew.” Id. The next day, the reassembled jury awarded a verdict of more than the stipulated amount of medical expenses (although not that much more). The plaintiff appealed the trial court’s decision to reempanel the jurors, arguing that a new trial should have been granted. In that appeal, the Ninth Circuit affirmed, holding “that a district court could reempanel the jury shortly after dismissal as long as during the period of dismissal, the jurors were not exposed to any outside influences that would compromise their ability to reconsider the verdict fairly.” Id. The plaintiff petitioned the Supreme Court for review, and certiorari was granted. In affirming the Ninth Circuit’s decision, the Supreme Court first explained something about trial courts’ inherent authority to control procedures in their courtrooms, even though there may be no rule of procedure, statute, or other written authority for handling a situation. The Court noted, that although the rules of civil procedure “set out many of the specific powers of a federal district court … , they are not all encompassing. They make no provision, for example, for the power of a judge to hear a motion in limine … or many other standard procedural devices trial courts around the country use every day in service of Rule 1’s paramount command: the just, speedy, and inexpensive resolution of disputes.” Id. at 169-70. The Court reaffirmed that it “has long recognized that a district court possesses inherent powers that are ‘governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’” Id. at 170. The Supreme Court in Dietz made it clear that trial judges do not have the inherent authority to do anything they want to do in jury trials. “First, the exercise of an inherent power must be a ‘reasonable response to the problems and needs’ confronting the court’s fair administration of justice. Second, the exercise of an inherent power cannot be contrary to any express grant of or limitation on the district court’s power contained in a rule or statute.” Id. at 167. Specifically in the context of recalling and reempaneling a jury once a mistake is found, the Court found that the exercise of such power was “a reasonable response to a specific problem and [did not] contradict any express rule or statute.” Id. at 170. Therefore, the panel was recognized. After recognizing the inherent authority of courts to recall jurors and reempanel them to deliberate anew, the Court set some limitations upon the exercise of that power. “The inherent power to rescind a discharge order and recall a dismissed jury, therefore, must be carefully

circumscribed, especially in light of the guarantee of an impartial jury that is vital to the fair administration of justice.” Id. at 172. The Court laid down the parameters of when the inherent authority should and should not be exercised as follows: Any suggestion of prejudice in recalling a discharged jury should counsel a district court not to exercise its inherent power. A district court that is considering whether it should rescind a discharge order and recall a jury to correct an error or instead order a new trial should, of course, determine whether any juror has been directly tainted--for example, if a juror discusses the strength of the evidence with nonjurors or overhears others talking about the strength of the evidence. But the court should also take into account at least the following additional factors that can indirectly create prejudice in this context, any of which standing alone could be dispositive in a particular case. First, the length of delay between discharge and recall. The longer the jury has been discharged, the greater the likelihood of prejudice. Freed from the crucible of the jury’s group decision making enterprise, discharged jurors may begin to forget key facts, arguments, or instructions from the court. In taking off their juror “hats” and returning to their lives, they may lose sight of the vital collective role they played in the impartial administration of justice. And they are more likely to be exposed to potentially prejudicial sources of information or discuss the case with others, even if they do not realize they have done so or forget when questioned after being recalled by the court. How long is too long is left to the discretion of the district court, but it could be as short as even a few minutes, depending on the case. Second, whether the jurors have spoken to anyone about the case after discharge. This could include court staff, attorneys and litigants, press and sketch artists, witnesses, spouses, friends, and so on. Even apparently innocuous comments about the case from someone like a courtroom deputy such as “job well done” may be sufficient to taint a discharged juror who might then resist reconsidering her decision. Third, the reaction to the verdict. Trials are society’s way of channeling disputes into fair and impartial resolutions. But these disputes can be bitter and emotional. And, depending on the case, those emotions may be broadcasted to the jury in response to their verdict. Shock, gasps, crying, cheers, and yelling are common reactions to a jury verdict--whether as a verdict is announced in the courtroom or seen in the corridors after discharge. In such a case, there is a high risk that emotional reactions will cause jurors to begin to reconsider their decision and ask themselves, “Did I make the right call?” Of course, this concern would be present even in a decision to reinstruct the jury to fix an error after the verdict is announced but before they are discharged. See Fed. Rule Civ. Proc. 51(b)(3). Even so, after discharging jurors from their obligations and the

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www.FloridaJusticeAssociation.org | July/August 2016 | 43

CIVILPROCEDURE

passage of time, a judge should be reluctant to reempanel a jury that has witnessed emotional reactions to its verdict. In considering these and any other relevant factors, courts should also ask to what extent just-dismissed jurors accessed their smartphones or the internet, which provide other avenues for potential prejudice. It is a now-ingrained instinct to check our phones whenever possible. Immediately after discharge, a juror could text something about the case to a spouse, research an aspect of the evidence on Google, or read reactions to a verdict on Twitter. Prejudice can come through a whisper or a byte. Finally, we caution that our recognition here of a court’s inherent power to recall a jury is limited to civil cases only. Given additional concerns in criminal cases, such as attachment of the double jeopardy bar, we do not address here whether it would be appropriate to recall a jury after discharge in a criminal case. … Id. at 172-73. The Dietz decision was authored by Justice Sotomayor and was joined in by Chief Justice Roberts and Justices Ginsberg, Breyer, Alito, and Kagan. Justice Thomas filed a dissenting opinion in which Justice Kennedy joined. In writing for the majority, Justice Sotomayor rejected the petitioner’s argument that “once the jurors are told they are free to go . . . , with their bond broken, the jurors cannot be brought back together again as a ‘jury.’ In other words, once a jury is discharged, a court can never put the jury back together again by rescinding its discharge order—legally or metaphysically.” Id. at 174-75. Her Honor “reject[ed] this ‘Humpty Dumpty’ theory of the jury.” Id at 175. Her Honor held that “there is nothing about the jury as an entity that ceases to exist simply because the judge tells the jury that they are excused from further service.” Id. at 175. In closing, Her Honor made the practical point that “[t]here is no benefit to imposing a rule that says that as soon as a jury is free to go a judge categorically cannot rescind that order to correct an easily identified and fixable mistake, even as the jurors are still in the courtroom collecting their things.” Id. You may never have need for invoking a trial court’s inherent authority to reempanel a jury once it has been dismissed. However, the holding of the Dietz case should start you thinking out-of-the-box and utilizing the concept of a court’s “inherent authority” when you really need something that is not written in any rule or statute. CASE SUMMARIES IN CIVIL PROCEDURE Amendments to Pleadings. In reaffirming the legal standard recognizing that parties should be allowed to amend their pleadings “unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile,” the court in Faber v. Karl of Pasco, Inc., No. 2D15-4106; 2016 Fla. App. LEXIS 9982 (Fla. 2d DCA 6-29-16), reversed the trial court’s denial of leave to amend which had been largely based upon the trial court’s acceptance of defense counsel’s argument that leave to amend should be denied because the 44 | July/August 2016 | www.FloridaJusticeAssociation.org

allegations of the amended complaint contradicted the plaintiff’s prior sworn deposition testimony. The court held that “Ms. Faber’s affidavit did not contradict her prior deposition; rather, she clarified her earlier assumption regarding the chain of events leading to her alleged injuries based on additional facts that came to light during the depositions of [other witnesses].” Id. at *6. The court noted that the trial judge had said something on the record to the effect that a new lawsuit could be filed based upon the new information that became known to the plaintiff. The court stated: “We also note that while the [trial] court declined Ms. Faber’s request to clarify whether it was expressly finding that she could not state a viable cause of action based on the record, the court did indicate that it would be appropriate for Ms. Faber to initiate a new lawsuit based on the amended claims. Where ‘the record indicates that the plaintiff may have a cause of action’ the appropriate action is to grant the plaintiff leave to amend the complaint accordingly.” Id. at *7. Error to Grant Involuntary Dismissal Before Plaintiff Rests Its Case. In Fischer v. Fischer, No. 4D15-2147; 2016 Fla. App. LEXIS 10026 (Fla. 4th DCA 6-29-16), the Fourth District reversed the trial court’s ruling granting involuntary dismissal of the case prior to the plaintiff resting. Citing Fla. R. Civ. P. 1.420(b) that provides for a motion for involuntary dismissal where the plaintiff “in an action tried by the court without a jury has completed the presentation of evidence,” the Fourth District noted that it had “repeatedly held that a trial court may not involuntarily dismiss an action before the plaintiff has rested its case.” Id. at *3. Re-Opening Evidence After Involuntary Dismissal. In reversing the trial court’s denial of a directed verdict which was based upon the trial court’s mistaken recollection that a certain element of the plaintiff’s claim already had been established, the Second District in Gulf Eagle, LLC v. Park East Development, Ltd., No. 2D14-5571; 2016 Fla. App. LEXIS 9963 (Fla. 2d DCA 6-29-16), held that a directed verdict should have been granted but that the plaintiff should then have been allowed to re-open its case to supply the missing element of proof. The court stated that its “jurisprudence is clear that ‘[a] party cannot be penalized for good faith reliance on a trial court’s ruling.’ … in those instances where later events establish the existence of an erroneous ruling, this Court has required that ‘litigants must be granted an opportunity to present the case under the corrected ruling.’ … A remedy in such circumstances is to allow the aggrieved party to present additional evidence, and the failure to do so may constitute an abuse of discretion.” Id. at **5-6. The court held that both factors were present to permit re-opening of the case, noting: “Generally, to re-open a case, a party must establish two evidentiary predicates. The first predicate is that the presentation of evidence will not unfairly prejudice the opposing party, and second, that re-opening will serve the best interests of justice.” Id. at *6. Amendments to Pleadings—Legal Definition of “Prejudice”. In reversing the trial court’s ruling denying a mortgage foreclosure defendant’s motion to amend its answer thirteen days before trial, the First District in Morgan v. The Bank of New York Mellon, No. 1D152401; 2016 Fla. App. LEXIS 9898; 41 FLW D1508 (Fla. 1st DCA 6-28-16), held as follows:

Appellant filed her motion to amend 13 days before trial. Her proposed amended answer raised eight affirmative defenses, three of which she raises on appeal: (1) failure to comply with a condition precedent, i.e. acceleration; (2) failure to comply with a condition precedent, i.e. notice pursuant to section 559.715, Florida Statutes (2016); and (3) lack of standing. The Bank cannot show that it would be prejudiced by Appellant’s defense that it did not provide her with the 30-day notice required by paragraph 22 of the mortgage prior to acceleration, because the defense concerns the Bank’s failure to comply with its own documents. See Cobbum v. Citimortgage, Inc., 158 So.3d 755, 757 (Fla. 2d DCA 2015). The Bank also cannot show prejudice as to Appellant’s defense that it did not comply with the notice requirement in section 559.715 before filing suit. In its complaint, the Bank alleged that all conditions precedent to filing suit had been performed or had occurred, and courts have held that “requiring a plaintiff to prove its allegations is not prejudice to the plaintiff; it merely offers due process to the defendants.” Thompson, 872 So.2d at 360. Finally, the Bank has not demonstrated prejudice as to Appellant’s defense that it lacked standing to foreclose. Under Florida law, “[t]he party seeking foreclosure must present evidence that it owns and holds the note and mortgage to establish standing to proceed with a foreclosure action.” Mazine v. M & I Bank, 67 So. 3d 1129, 1131 (Fla. 1st DCA 2011) (citing Servedio v. U.S. Bank Nat’l Ass’n, 46 So. 3d 1105 (Fla. 4th DCA 2010)). Because the Bank already had the burden to present evidence establishing its standing, it cannot claim it is prejudiced by Appellant’s defense challenging the sufficiency of that evidence. Id at **4-5. Ambiguity in Proposal for Settlement Invalidates Proposal. In the never-ending battle to explain how to draft a proposal for settlement that withstands the “ambiguity” test, the court in Nunez v. Allen, No. 5D144386; 2016 Fla. App. LEXIS 9670; 41 FLW D1487 (Fla. 5th DCA 6-24-16), reversed the trial court’s award of attorney’s fees to the plaintiff finding that the proposal for settlement upon which it was based was ambiguous. The case involved a motor vehicle accident in which the plaintiff had sued the driver and the vehicle’s owner. The plaintiff then served separate proposals for settlement upon each defendant. Although each proposal stated that it was “made for the purpose of settling any and all claims made in this cause by plaintiff … against defendant, [separately naming each defendant in each proposal],” paragraph 5 of the proposals stated: “this Proposal for Settlement is inclusive of all damages claimed by the plaintiff …including all claims for interests, costs and expenses, and any claims for attorney’s fees.” Id. at **2-3. In holding that the proposals were ambiguous, the court noted that one paragraph of each proposal stated “that payment of $20,000 by the appellant named in the proposal would settle appellee’s claims brought in the case against that specific appellant … , paragraph 5 of appellee’s proposal for settlement could be reasonably interpreted to mean that the acceptance of the proposal for settlement by only one of the appellants resolved appellee’s entire claim against both appellant’s.” Id. at **7-8. Therefore, the proposal was unenforceable. Pleading Ordinary Negligence Claim Against Medical Professionals. In a case involving injury to a deaf psychiatric in-patient at a residential

treatment facility licensed under Chapter 394, the court held that injuries sustained when medical personnel physically restrained the plaintiff to de-escalate a violent situation was properly pleaded as ordinary negligence, and not as medical malpractice. In Townes v. National Deaf Academy, LLC, No. 5D14-904; 2016 Fla. App. LEXIS 9383; 41 FLW D1439 (Fla. 5th DCA 6-17-16), the court reversed the trial court’s grant of summary judgment on those negligence counts. The court held that “the use of the TACT protective hold on Perry was not for treatment or diagnosis of any condition, was not employed to meet Perry’s daily needs during care, and did not require medical skill or judgment as non-medical staff were taught the procedure and were authorized to decide whether to employ it.” Id. at **10-11. Relation Back of Amendments to Plead Statutory Cause of Action. In Townes v. National Deaf Academy, LLC, No. 5D14-904; 2016 Fla. App. LEXIS 9383; 41 FLW D1439 (Fla. 5th DCA 6-17-16), the Fifth District reversed the trial court’s grant of summary judgment to the defendant on two statutory causes of action based upon the statute of limitations defense. Holding that the statutory claims related back to the original filing of claims for medical malpractice and ordinary negligence against the defendant, and holding that the relation back rule should be liberally construed, the court rejected the defendant’s argument that the statutory claims were time barred because “there is a change in the precise legal description of the right sought to be enforced, or a change in the legal theory upon which the action is brought.” Id. at *15. Concluding that “the amended complaint ‘arises from a common core of operative facts’ shared with the original complaint,” the court held that the statutory claims were timely filed. Striking of Pleadings for Violating Discovery Orders. Most appellate decisions involving striking of pleadings for litigation misconduct are based at least in part upon affirmative misconduct of the offender, such as concealment or destruction of evidence, false testimony, and so forth. Rarely does an appellate court deal with the striking of pleadings based upon ordinary failure to abide by discovery orders. However, in Barrett v. The Escape of Arrowhead Assn., Inc., No. 4D13-3044; 2015 Fla. App. LEXIS 8835; 41 FLW D1370 (Fla. 4th DCA 6-8-16), the court affirmed the trial judge’s order striking the defendant’s pleadings and thereafter entering summary judgment by default. There was no allegation of discovery misconduct, other than garden-variety recalcitrance to abide by orders compelling discovery. The defendant also failed to comply with several discovery orders, and was sanctioned for violating those orders by failing to pay the sanction.

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.

www.FloridaJusticeAssociation.org | July/August 2016 | 45

CLOSINGARGUMENT

CLOSING ARGUMENT IN UNINSURED MOTORIST CASES by Philip M. Burlington, Barbara Green and Christopher V. Carlyle

here are Closing Argument issues that are unique to uninsured motorist (“UM”) cases as a result of the unusual nature of the action. An uninsured motorist claim is a hybrid action which is based on a breach of contract, i.e. the failure to pay insurance benefits, but has its “underpinnings in tort liability.” Auto Owners Ins. Co. v. Dewberry, 383 So.2d 1109 (Fla. 1st DCA 1980). While the plaintiff sues the UM carrier for recovery under the insurance contract, if there are no coverage disputes the insurer “stands in the uninsured motorist’s shoes” and the case is tried as a tort action. See Allstate Ins. Co v. Boynton, 486 So.2d 552, 557 (Fla. 1986). In that situation, while the case is tried as a generic auto negligence action, the Supreme Court has held that the jury must be informed that the UM carrier is a party to the action. Government Employees Ins. Co. v. Krawzak, 675 So.2d 115 (Fla. 1996).

In Revuelta, as in many of the other cases discussed infra, there were also improprieties in the plaintiff’s closing argument which are generic to tort actions (such as contrasting the insured’s poverty with the insurance company’s wealth and suggesting that the jury punish the defendant for defending the action), however, this this article will be limited to issues unique to UM trials. In Revuelta, the Third District reversed the judgment in favor of the plaintiff and remanded for a new trial based on all the improper statements in the closing arguments.

The result of these principles creates a potential for confusion because most UM trials are essentially tort actions against a motorist, who often does not participate in the proceedings, and the insurer, who only has a contractual relationship with the plaintiff. With respect to closing arguments, and to some extent evidentiary issues, problems arise when facts relevant only to the contractual relationship or arguments applicable only to contract claims are argued to the jury. When that happens, courts have often found that unfair prejudice was caused to the insurance company which requires a new trial.

USAA happily took his money, but when it comes to paying his claim, they are not so happy. Is that just? Is that fair? USAA won’t pay Sam for the protection he already purchased. He already bought. He paid for it, paid in advance, and they won’t pay him. They won’t pay him.

For example, in State Farm Mutual Automobile Ins. Co. v. Revuelta, 901 So.2d 377 (Fla. 3rd DCA 2005), the trial court denied the insurer’s motion to exclude from evidence any reference to the number of years the plaintiff had paid premiums for UM coverage over objection, plaintiff’s counsel was also allowed to argue that fact to the jury in closing. The Third District held that evidence was irrelevant because the UM case which should be limited to the issues of the uninsured motorist’s negligence, causation, and damages. The court ruled that to allow the plaintiff to argue that the insurer should be called to account for failing to pay the benefits after receiving premiums for twenty years was an improper “send a message” argument; citing Kloster Cruise Lt. v. Grubbs, 762 So.2d 552 (Fla. 3rd DCA 2000). The Third District also noted that plaintiff’s closing argument improperly insinuated that the insurance company had acted in bad faith in defending the action, and inappropriately made reference to its marketing slogan that it would be “a good neighbor.” Those arguments, while possibly relevant in a contract case, had no place in a UM trial which was essentially a negligence action against the uninsured motorist.

46 | July/August 2016 | www.FloridaJusticeAssociation.org

In USAA Casualty Ins. Co. v. Howell, 901 So.2d 876, 878 (Fla. 4th DCA 2005), plaintiff’s counsel made an extensive argument regarding the insurer’s failure to pay the plaintiff UM benefits after receiving premiums for years, as follows:

In Howell, plaintiff’s counsel also made the creative argument that the Minister of Information for Iraq (who at that time was a prominent public figure associated with the Iraq war) would fit in well working for USAA, which was clearly an improper attack on the credibility of the company. While the Fourth District ultimately affirmed the judgment in Howell because there were no contemporaneous objections by the defendant to the improper arguments, the opinion makes it clear that such arguments have no place in a UM action. Similar improper comments were made in the closing argument in Mercury Ins. Co. of Fla. v. Moreta, 957 So.2d 1242 (Fla. 2d DCA 2007). Plaintiff’s counsel also argued that the accident caused by the uninsured motorist created a “debt” which was owed by the insurance company to the insured and that the trial was designed to collect that debt and ensure that the carrier was “living up to the terms and conditions of the contract.” 957 So.2d at 1249. Arguments which suggest the existence of a “debt” are inappropriate because the jury is not presented contractual issues in the UM trial, and the suggestion that a debt was created by the accident could lead a jury to believe that there are no liability issues for them to determine. However, defense counsel in Moreta did not object to the arguments, and while the Second District’s opinion makes it clear that such comments are improper, it concluded that they did not constitute fundamental error justifying a new trial under Murphy v. International Robotics Systems, Inc., 766 So.2d 1010 (Fla. 2000).

In Carvajal v. Penland, 120 So.3d 6 (Fla. 2d DCA 2013), in addition to evidence regarding the payment of premiums, the plaintiff also testified that after the accident the insurance company “dropped her” 120 So.3d at 8. Despite the insurer’s objections, plaintiff’s counsel argued that the insurer would not accept its responsibility to pay the UM benefits for which the plaintiff paid her premiums and essentially requested the jury to punish the carrier for defending the case. However, such comments conflate the insurer’s contractual duty to comply with the policy, which is not a jury issue, with the relevant issues of the uninsured motorist’s tort liability. The court in Carvajal stated: Counsel’s contention that State Farm was refusing to “own up to the responsibility that they have [sic]” not only improperly shifted the focus of the case but also “‘improperly suggested that [State Farm] should be punished for contesting damages at trial and that its defense of the claim in court was improper.’” In Allstate Ins. Co. v. Morotta, 125 So.3d 956 (Fla. 4th DCA 2013), plaintiff’s counsel made irrelevant comments derived from the insurer’s marketing scheme, such as “I ask you, is that what it means to be in good hands?” 125 So.3d at 958. Plaintiff’s counsel also argued that the accident “created a debt” and that it was time for the plaintiff to collect, and that the insurance company paid doctors who know what it “really wants” and that they were “enlisted as part of an effort to manufacture a defense.” 125 So.3d at 959. Based on those improper arguments to which there were timely objections, the Fourth District reversed the judgment in favor of the plaintiff and remanded for a new trial. In State Farm Mutual Automobile Ins. Co. v. Gold, 186 So.3d 1061, 1026 (Fla. 4th DCA 2016), plaintiff’s counsel improperly started his closing argument by telling the jury that: We’re here because Mr. Gold had purchased uninsured motorist coverage so this wouldn’t happen. At the same time, plaintiff’s counsel made that statement, he also presented a PowerPoint slide to the jury which stated (186 So.3d at 1063): Michael Gold has been carrying a debt. State Farm promised to pay stacks of medical bills. Paying the price for someone else’s mistake State Farm refuses to take responsibility for the debt it owes to Mr. Gold, forcing us to bring them to trial. Additionally, at the conclusion of the closing argument in Gold, plaintiff’s counsel presented a PowerPoint slide that stated “Gold has done the right thing all along. Has the Defendant?” 186 So.3d at 1063. State Farm properly objected to all these comments. The Fourth District ordered a new trial, ruling that the effect of those statements focused the jury’s attention on State Farm’s supposed contractual liability rather than on the issues which the jury was there to determine. Those comments in conjunction with a confusing jury instruction “painted a clear picture in the jury’s minds of a company breaking an obligation rather than a company simply attempting to determine actual damages attributable to the accident.” 186 So.3d at 1063.

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Another unique aspect of a UM case is that while formally it is a breach of contract action, the jury’s award of damages is not constrained by www.FloridaJusticeAssociation.org | July/August 2016 | 47

CLOSINGARGUMENT any limitations in the contract. That is, regardless of the policy limits, the damages awarded by the jury are determined under tort principles, and while the ultimate judgment is reduced to the policy limits, the insured can recover the “excess” in a subsequent bad faith action. See Fridman v. Safeco Ins. Co. of Illinois, 185 So.3d 1214 (Fla. 2016).

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As a result, the UM policy limits are not relevant to the jury’s determination of the underlying UM damages, and the admission into evidence of those limits and reference in closing argument can be improper and prejudicial. In Dewberry, supra, the First District ordered a new trial when the amount of the UM policy limits was admitted into evidence and plaintiff’s counsel specifically argued them to the jury as a relevant consideration for determining damages. The prejudicial effect was demonstrated by the fact that the jury returned a verdict in the precise amount of the policy limits. The First District inferred from that the evidence and closing argument had an improper influence on the jury’s consideration and ordered a new trial When the Florida Supreme Court ruled in Krawzak, supra, that the jury should be aware of the identity of the insurance company in a UM action, it was balancing the concern to avoid “charades in trials” against the possibility that awareness of the insurer’s identity “could allow innovative counsel to expand the focus of the idea of coverage and the availability of insurance funds.” Krawzak, supra, 675 So.2d at 117, 118. As the cases discussed above should demonstrate, being “innovative” has its risks. When representing a plaintiff in a UM action it is critical that you remember that you are essentially trying a tort action, not a contract case, and it is best to avoid injecting irrelevant issues into the trial that could undermine a favorable verdict and require a new trial. Philip M. Burlington

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

Barbara Green

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

Christopher V. Carlyle

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

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Steve Brannock named one of the Top 10 lawyers in Florida. - Florida Super Lawyers, 2016

Celene Humphries & Ceci Berman each honored as one of the Top 50 women lawyers in Florida. - Florida Super Lawyers, 2016

Steve Brannock, Celene Humphries & Ceci Berman named “Best Lawyers“ in Florida for appellate practice, and Steve Brannock & Ceci Berman named “Best Lawyers” in Florida for commercial litigation. - Best Lawyers, 2016

Steve Brannock, Celene Humphries & Ceci Berman each recognized as one of the Top 100 lawyers in Florida, and Top 50 lawyers in Tampa Bay. - Florida Super Lawyers, 2016

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www.FloridaJusticeAssociation.org | July/August 2016 | 49

FJAAPPELLATEPRACTICESECTION

Fighting Collateral Sources Defenses After the Affordable Care Act and Joerg by Celene Humphries

onsider the following scenario. Susan Smith was injured in an automobile accident, and she incurred $72,900 in past medical bills. Susan paid $1,200 out-of-pocket in copayments for these bills, which left a $71,700 balance. Because of a pre-negotiated contractual arrangement between Susan’s hospital and her insurance company, Susan’s hospital wrote off $43,200, and her insurance company paid $28,500 to satisfy the remaining balance. Susan’s doctor says that her injuries will require future medical care, including surgery, and that this will cost another $61,500. To recover her costs, and for other noneconomic damages, Susan sued the driver who hit her. At trial, does it matter that Susan’s private insurance—a collateral source—paid for most of her past medical bills? What about her future medical bills? Does it matter if Susan, instead of having private insurance, is instead covered by Medicare or Medicaid? And, have the answers to the questions changed with the passing of Affordable Care Act (the “ACA”)?

The role of third-party payments in damages calculations is governed by a court-created rule, called the collateral source rule. Under the rule, collateral source payments such as insurance payments, employment benefits, gratuities, and social-legislation benefits may not be used to mitigate damages a defendant owes.1 The rule was first recognized in the United States in 1854, where the U.S. Supreme Court found that an insurance company’s collateral payments to the plaintiff were irrelevant to the damages owed by the defendant because “[t]he contract with the insurer is in the nature of a wager between third parties, with which the trespasser has no concern.”2 Since its early enshrinement, the collateral source rule has provoked significant debate. These debates reflect disagreement about the collateral source rule specifically and the nature and purpose of tort law in general.3 Indeed, the collateral source rule highlights the conflicting purposes of tort law. The justifications given for the 50 | July/August 2016 | www.FloridaJusticeAssociation.org

collateral source rule, like the justifications for other tort doctrines, are varied and inconsistent. The collateral source rule has been both justified and attacked on the grounds of corrective justice, deterrence, retribution, economic efficiency, instrumentalism, distributive justice, and administrative efficiency.4 It is a combination or accumulation of these justifications that drive most courts nationwide to either impose or, conversely, abrogate the collateral source rule in tort liability actions, leading to an incoherent approach to this doctrine in the United States.5 Florida Courts adopted the common law collateral source rule long ago.6 The primary justification in our courts was to prevent tortfeasors from benefiting from the injured plaintiff’s insurance contract.7 The reason is that a tortfeasor has no interest in, and therefore no right to benefit from, monies received by the injured person from sources unconnected with the defendant. The medical-cost discount that the defendant is trying to take advantage of is a product of the plaintiff’s insurance contract. A medical provider gives an insurer, and thus the insured, a negotiated reduced rate in exchange for the potential volume of business from all the individuals that buy the insurer’s health plan. The defendant takes no part in securing the benefits under a plaintiff’s insurance contract; the defendant does not pay premiums, does not partake in negotiations, and does not provide the plaintiff anything in return for paying premiums to an insurance company. So, allowing a tortfeasor to benefit from the plaintiff’s insurance would give that defendant an unearned windfall. Another reason for Florida’s adoption of the common law collateral source rule is evidentiary: introducing collateral source evidence misleads the jury, most likely to the prejudice of the plaintiff.8 Inherently then, the common law collateral source rule has two parts: an evidentiary part and a damages part.9 The evidentiary part of the rule prevents the jury from learning about any collateral source payments a

plaintiff receives.10 This means jurors are told only the amount billed for the plaintiff’s medical services and not the lesser amount ultimately paid by the third-party. Because a jury will not be aware of these payments, a jury might award medical damages that are higher than the amount the plaintiff or third-party ultimately pays for medical care. The damages part of the rule prevents a trier of fact from mitigating the damages a defendant owes by amounts third parties already paid to the plaintiff. Barring mitigation based on collateral source payments prevents defendants from reducing the damages owed to the amount actually paid, even when medical providers accept this lesser amount as payment in full. I.

The Florida Legislature abrogated the damages portion of the common law rule. Very few states fully apply the common law collateral source rule. In response to tort reform efforts, many states altered the common law formulation of the collateral source rule. Thirty-nine states enacted statutes that modified or abrogated the rule.11 According to the most recent surveys, Arkansas, Louisiana, Mississippi, New Mexico, North Carolina, South Carolina, Texas, Vermont, Virginia, West Virginia, and Wyoming retain the rule in its pure, unmodified form. Despite the severe criticism of, and significant campaigns to repeal, the collateral source rule, only six states have legislation completely abrogating the rule, at least during the post-verdict damages determination.12 One of those is Florida. Section 768.76, Florida Statutes, requires a post-trial reduction of the jury’s damage award, providing that a “court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources.” The primary justification for the statutory abrogation of the collateral source rule in Florida was the exact opposite of the reason for the rule’s creation. The legislature was concerned that plaintiffs would receive a windfall by being compensated twice for the same medical bills, by both their insurance company and the tortfeasor.13 A secondary justification was the hope that insurance costs would be reduced.14 A. Florida limited its deviation from the common law rule. Be aware that Florida’s abrogation of the damages portion of the common law collateral source rule is limited in two ways (and possibly a third). First, only certain damages are affected. By definition, the collateral source rule applies only to economic damages (medical expenses, and lost earnings). Section 768.76 tracks this reality.15 But, section 768.78 then expressly limits its application to past damages incurred by plaintiffs. Future, anticipated expenses remain protected by the common law rule, so that the defendant enjoys no compensation from any anticipated collateral source payments. In Allstate Ins. Co. v. Rudnick, 761 So.2d 289 (Fla. 2000), the Florida Supreme Court held section 768.76 does not authorize the setoff of future medical benefits against a verdict which includes future medical damages. Section 768.76 requires reduction only for those collateral source payments, “which have been paid for the benefit of the claimant, or which are otherwise available to the claimant.”16 The supreme court, in analyzing section 768.76, concluded that “the use of the word ‘available’ strongly suggests that … the Legislature did not

intend to allow a collateral source setoff for future potential benefits.”17 The supreme court, in a similar context, also held that a jury’s award for future medical benefits should not be reduced by the amount of any remaining PIP benefits.18 Other courts have followed suit in holding that future collateral source benefits are not subject to the statutorily imposed post-trial deduction.19 So, damages for a plaintiff’s future medical expenses and lost earning ability still enjoy the common law collateral source rule; no reduction is required. But, jury awards for past damages will be reduced by the amount of collateral sources paid on the plaintiff’s behalf. Second, the statutory abrogation does not apply where a subrogation or reimbursement right exists to pay for those past damages.20 Subsection (1) of section 768.76 provides that there are no reductions “for collateral sources for which a subrogation or reimbursement right exists.” The reason for this exception is that the plaintiff does not get a windfall when the collateral source provider retains a right of subrogation or reimbursement.21 A number of Florida courts have applied this portion of section 768.76 to exclude uninsured motorist benefits from the list of collateral sources that must be deducted post-trial.22 The original version of section 768.76 did not specify the procedures for a collateral source provider to assert this right. For causes of action accruing on or after October 1, 1993,23 a claimant must notify the provider of collateral sources of the claimant’s intent to claim damages from a tortfeasor, and the provider must assert its right of subrogation or reimbursement.24 A collateral provider has a right to subrogation or reimbursement only if it follows this statutory procedure.25 Section 768.76 then goes on, in subsection (2), to give more specific examples of collateral sources that are not required to be set-off because of a right of reimbursement or subrogation. Included in the list are the Medicare and Medicaid programs.26 As the Florida Supreme Court recently explained in Joerg, federal statutes provide for reimbursement of benefits paid pursuant to both federal programs.27 In fact, there’s been a great deal of litigation in Florida over whether those programs are too aggressive in their reimbursement efforts.28 So, the common law collateral source rule applies here to shield third-party payments from the statutorily required post-verdict reduction of damages verdicts, where the third-party enjoys a right of subrogation or reimbursement. Third, one federal court has held that Florida’s statutory abrogation of the collateral source rule does not apply to letters of protection. In Grell v. Bank of America Corp., the United States District Court for the Middle District of Florida relied on Rudnick to hold that a “letter of protection” is not a contractual discount of medical bills that should be deducted from the damages verdict as a collateral source.29 The court explained that a letter of credit, by definition, is not a payment that has been paid or is presently due and owing. It is an agreement between a plaintiff and a medical provider that the plaintiff will assume 100 percent responsibility for the medical bill if the medical provider does not submit the bill to the plaintiff’s health insurance carrier.30 B. Carefully calculate the collateral sources reduction There are two ways we can keep more money for our clients when calculating the collateral source reduction.

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FJAAPPELLATEPRACTICESECTION First, when calculating the collateral source reduction, section 768.76 allows the plaintiff to offset the reduction by “any amount which has been paid, contributed, or forfeited by, or on behalf of, the claimant or members of the claimant’s immediate family to secure her or his right to any collateral source benefit which the claimant is receiving as a result of her or his injury.”31 As stated in Gormley, this amount can be significant.32 Remembering to introduce this evidence at the damages hearing increases your client’s recovery. However, this provision in the statute is not a very satisfactory resolution to the fact that the defendant now reaps the benefit of a plaintiff who obtained insurance. This runs contrary to an important policy concern underlying the common law collateral source rule: that it was unfair for an injured person to choose to purchase insurance while the tortfeasor enjoys the benefit of that choice.33 And, while section 768.76 appears to make that person whole by reimbursing them for that expense, it may create more problems than it solves because the statute does not define the method of calculating “any amount which has been paid, contributed, or forfeited.” Contrast Florida’s collateral source statute with Connecticut’s statute, which allows plaintiffs to collect the amount paid “as of the date the court enters judgment.”34 Connecticut courts interpret this as the amount the plaintiff paid in premiums during the years in which the plaintiff received care related to the injury.35 Minnesota’s statute is more specific: it limits the premium offset to those premiums paid in the two years before the action accrued.36 But, in Florida, we don’t know whether a plaintiff who has paid insurance premiums for the last 10 years can recover all of those premiums, or is limited to a more recent timeframe—like, say, premiums paid in the last month.37 In fact, one author has gone so far as to propose limiting premium reimbursements to only those paid after the injury.38 And all of this uncertainty serves to further harm plaintiffs, who will have to incur further expense, plus delay, to litigate this premium question. Second, a Florida Supreme Court decision suggests that the collateral source reduction must be made to the jury’s economic damages award before the percentage of comparative negligence is applied to reduce the damage award. In Norman v. Farrow, the Florida Supreme Court held that PIP benefits which have been paid or payable must first be deducted from the economic damages awarded before the damage award is reduced according to the plaintiff’s percentage of comparative fault.39 Because the language construed is identical to that found in the general collateral source statute, Norman can easily be construed as applying to collateral source reductions in general.40 So, when the trial court applies the damage rule to the verdict, it applies only to past economic damages, and only if no right of subrogation or reimbursement exists for the collateral source provider. Even then, consider offsetting the collateral source deduction by the amount paid by the plaintiff to secure that source, and be certain that the deduction is taken before the economic damage award is reduced by the degree of the plaintiff’s comparative fault. II.

The evidentiary portion of the common law rule is alive and well. But, what about the evidentiary portion of the collateral source rule? This portion of the common law doctrine historically prohibited the 52 | July/August 2016 | www.FloridaJusticeAssociation.org

introduction of any evidence of collateral-source payments.41 Here, there is good news: This aspect of the rule was unaffected by section 768.76; today, the evidentiary collateral-source rule “remains alive and well in Florida.”42 In Harrell, the Court held that the evidentiary collateral-source rule precluded evidence of payments made by a private health insurer; meaning that the plaintiff was entitled to introduce the full value of her medical bills—not the reduced amount the insurer ended up paying.43 Other courts have similarly applied the evidentiary collateral-source rule to preclude evidence of homeowner-insurance benefits,44 and even to keep out evidence that the plaintiff negotiated a lower hospital bill.45 This rule makes sense because admitting the discounted bills could skew a jury’s perception of a plaintiff’s case. If defense attorneys had their way, the jury in Susan Smith’s case would have been told that she incurred only $29,700 in past medical bills (instead of $72,900), which would be at odds with evidence of her medical care (including things like being rushed, by ambulance, to the emergency room and undergoing surgery). After seeing such a low figure for the value of past medical expenses, a jury might infer that insurance, or some other type of collateral source, covered these services. This would be prejudicial to a plaintiff. The introduction of collateralsource evidence “misleads the jury on the issue of liability and, thus, subverts the jury process.”46 For example, collateral-source evidence “may lead the jury to believe that the plaintiff is trying to obtain a double or triple payment for one injury, or to believe that compensation already received is sufficient recompense.”47 Excluding the full value of the past medical bills could also prevent a plaintiff from being able to prove the seriousness of the injuries. Jurors may relate the concrete value of medical bills to the more abstract value of the noneconomic damages like pain and suffering.48 As an Ohio appellate court49 has explained: The undiscounted medical bills should also be admitted because they are some evidence of the severity of the plaintiff’s injuries. In this case, the difference is not great, but in some it could be humongous—the write-down could be substantial. An insured person would then be seen as less injured than an uninsured. We think they bleed the same. There is one exception to keeping this evidence from the jury. PIP benefits are handled differently. While they are collateral sources, as defined by section 768.76, they are also specifically governed by the PIP statute, section 627.736, Florida Statutes.50 That statute specifically requires the fact finder to hear evidence of PIP benefits for purposes of determining a setoff, unless there is a waiver or an agreement of the parties.51 The result is a conflict with the requirement in section 768.76 that such evidence not be presented to the fact finder. The Florida Supreme Court addressed the conflict and held that parties must comply with the evidentiary requirements of section 627.736, citing section 768.71(3), which states that the general collateral source statute does not apply when it conflicts with another statute.52 So, the evidentiary portion of the collateral source rule is alive and well, protecting plaintiffs from the introduction of this evidence at trial, except for the limited statutory abrogation for the introduction of PIP benefits.

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FJAAPPELLATEPRACTICESECTION III.

The evidentiary portion of the common law rule protects Medicaid and Medicare benefits too.

Until recently, there was a debate over whether the evidentiary collateral-source rule applied a plaintiff’s receipt of Medicare and Medicaid payments. This debate can be traced back to Florida Physicians Insurance Reciprocal v. Stanley, where the Florida Supreme Court held that the evidentiary portion of the common law collateral-source rule should be “limited to those benefits earned in some way by the plaintiff” and should not “apply to governmental or charitable benefits available to all citizens, regardless of wealth or status.”53 The question in the Medicare context, then, was whether Medicare payments were the type of “governmental or charitable” benefits to which Stanley was referring. And, the answer to that question would depend on whether Medicare benefits were “earned in some way by the plaintiff.” The Third District Court of Appeal found that Medicare benefits were earned within the meaning of Stanley, because “hospital costs paid for by a Medicare program which the recipient supports by a tax against his Social Security check are a benefit for which the recipient has incurred a liability or expense. The collateral source rule was properly applied to exclude those benefits….”54 Other courts adopted the opposite outlook. In Thyssenkrupp Elevator Corp. v. Lasky, the Fourth District Court of Appeal interpreted Stanley to mean that the evidentiary collateral-source rule should not apply where a plaintiff “accepts Medicare payment in full satisfaction of ” his or her hospital bills.55 The Second District Court of Appeal followed suit.56 And so the debate continued. But, no longer. The Florida Supreme Court—after noting that “courts of this state have struggled to apply Stanley”—provided a definitive answer on the subject.57 In Joerg, the Supreme Court “recede[d] from Stanley to the extent that it supported the admission of social legislation benefits as an exception to the evidentiary collateral source rule.”58 This was necessary, Joerg explained, because of the confusion caused by Stanley, which “was never intended to apply to benefits from Medicare or Medicaid.”59 Id. The Supreme Court stated that its holding accorded with an underlying purpose of the collateral-source rule: to avoid “the inherently prejudicial effect of evidence of collateral source benefits.”60 As discussed above, collateral-source evidence is prejudicial because it “may lead the jury to believe that the plaintiff is trying to obtain a double or triple payment for one injury, or to believe that compensation already received is sufficient recompense.”61 And, Joerg noted that evidence of social legislation benefits like Medicare and Medicaid “may have an even greater prejudicial impact on juries.”62 Finally, Joerg (in a footnote) took issue with the idea that the plaintiff’s Medicare benefits were “free and unearned,” when the record actually reflected “several unchallenged arguments that [plaintiff’s] Social Security benefits were assessed to pay Medicare.”63 The tortfeasor defendant, as the party seeking the exclusion of the benefits, has the burden of showing otherwise.64 Ultimately, whether a plaintiff “earned” her Medicare benefits under Stanley is immaterial now, because Joerg receded from Stanley. Joerg makes clear that Medicare and Medicaid benefits are no different than private insurance when it comes to the 54 | July/August 2016 | www.FloridaJusticeAssociation.org

evidentiary collateral-source rule: both are inadmissible as inherently prejudicial collateral sources.65 Thus, plaintiffs may introduce the “the gross amount of her medical bills, rather than the lesser amount” paid by Medicare.66 VI. How does ACA impact Florida’s collateral source law? Defendants across the country are arguing that video killed the radio star. According to them, the common law collateral source rule cannot survive in the new age of the federal Affordable Care Act. In Florida, we can anticipate this argument being made anywhere that section 768.76 does not abrogate the common law, which is: (1) future medical expenses, and (2) past medical expenses where a right of subrogation or reimbursement exists. Defendants’ prediction of doom is wrong for a number of reasons.67 68 First, despite the otherwise sweeping changes to the health insurance system, nowhere in the Affordable Care Act does it purport to change the common law collateral source rule. In fact, it specifically says the opposite, that it is not intended to preempt state law.69 This truly is the starting point of the analysis. So, defendants do not (and cannot) claim that the Act expressly eliminates or modifies the collateral source rule. Instead, the defense is arguing that courts should change the collateral source rule. The only reason given (at its simplest) is that the new federal healthcare legislation and similar state healthcare initiatives undermine the rationales behind the collateral source rule. This kind of argument is always an uphill battle. And, given that Florida’s statute does address the collateral source rule, these sorts of policy arguments should be taken up with the legislature, not the courts. Second, the argument is likely to fail in Florida because none of the rationales allegedly implicated by the Act were relied upon by Florida courts when adopting the common law rule. The two main rationales alleged to have been cured by the Act are: (1) instrumentalist rationale, which claims that the collateral source rule provides incentives and rewards for the purchase of insurance; and (2) the contract-based arguments that protect the voluntary contractual relationship between the insured and the insurer. (Defendants are also claiming that the Act makes collateral-source jury instructions more complicated.) But, none of this matters in Florida. Florida is one of the few states to have substantially abrogated the common law collateral source rule, so that the past damage awards are handled post-trial (avoiding any confusion for the jury). And, where the common law rule still applies, Florida was not motivated by either of the problems purportedly cured by the Act. As explained above, when Florida first adopted the common law rule, the goal was to prevent tortfeasors from getting an unearned windfall.70 Section 768.76(2) still promotes that goal where benefits are paid by an insurance company that has a right of subrogation or reimbursement,71 or where Medicaid or Medicare (which also have a right of subrogation or reimbursement) pays those bills. On top of that, the defense argument goes against public policy, instead of addressing it. For example, defendants claim that their compensation for plaintiffs’ future medical costs should be capped at the Act’s maximum OOP limit. But, they ignore that requiring Actregulated health insurance to pay plaintiffs’ medical costs would shift costs from wrongdoers to injured individuals and taxpayers. To the

extent plaintiffs pay health premiums themselves, it would shift costs to the injured individual; to the extent plaintiffs receive government subsidies, it would shift costs to taxpayers.72 Neither type of cost shift can be justified on any legitimate policy grounds. The Congressional Budget Office estimates that the federal government will spend $4.28 trillion—2 percent of the U.S. gross domestic product—on private health insurance through tax credits and exclusions from 2014 to 2023.73 There is no evidence that Congress intended any of those expenditures to subsidize negligent third parties, and courts outside Florida have previously ruled that tax dollars should not cover such costs through Medicare and Medicaid.74 Third, the defendants’ cry for abolishing the collateral source rule fails anywhere it is made because it is founded upon untenable assumptions. With the Act’s guaranteed-issue requirements in effect, defendants argue that everyone is now able and legally required to purchase health insurance that covers all medical expenses beyond the Act’s maximum out-of-pocket (OOP) limit. So, the defense bar believes that the rationales behind the collateral source rule have been undermined or even eliminated. This claim is based on several false assumptions: (1) the Act requires everyone to have coverage; (2) the Act enables anyone to obtain coverage at any time; (3) the Act provides comprehensive benefits and adequate access to health care providers for people who are seriously injured; (4) the Act’s protections apply to all types of health insurance coverage; and (5) the protections that exist can and will be effectively enforced.75 The primary thrust of the defense bar’s argument is that, under the Act, everyone must purchase health insurance. But, despite aspirations of providing universal healthcare coverage to all Americans, the Act does not ensure complete universal healthcare coverage for all citizens. In fact, people may choose to forgo coverage. As Chief Justice John Roberts noted, “if someone chooses to pay rather than obtain health insurance, they have fully complied with the law.”76 For some people, paying the tax penalty may be more appealing than purchasing health insurance, depending on their age, health, risk aversion, and income.77 Also, the Act exempts nine categories of people from the penalty for religious, legal, financial, or other barriers to purchasing health insurance.78 And, the United States Supreme Court has upheld the right of employers to deny specific kinds of coverage based on a “sincerely held religions belief.”79 The Congressional Budget Office estimates that about 30 million people will be uninsured in 2016.80 Of those, four million will pay a tax penalty, and at least 23 million will qualify for an exemption. Three million uninsured may be subject to the penalty, but avoid paying it or be granted a hardship exemption.81 Because Florida has declined to adopt an expanded Medicaid program, the problem is worse here. The result is that approximately 800,000 low-income Floridians will not qualify for Medicaid and will not qualify for subsidies necessary for them to afford insurance under ACA.82 So, the premise that the Act requires everyone to have insurance is simply incorrect. On top of that, the Act further limits the number of people insured because it imposes time limitations for enrolling. The Act does not permit people to buy insurance at any time. The open enrollment period is limited to November 15th through February 15th annually.83 During the rest of the year, people may enroll in or change health

plans only if they experience a “triggering event,” such as the birth or adoption of a child, marriage, change in immigration or citizenship status, a permanent move, or loss of minimum essential coverage.84 As a result, people who want to purchase insurance after an injury could be uninsured for months and face the full costs of medical care in the intervening period. So, defendants simply cannot claim that everyone now has health insurance. They also cannot claim that the health insurance covers all medical expenses beyond the Act’s maximum out-of-pocket (OOP) limit. That’s because: (1) the OOP limit does not cover all types of care, and (2) the maximum OOP limit does not apply to bills from out-of-network providers. Starting with the care that is subject to the OOP limit, the Act limits a person’s financial responsibility for only certain medical expenses (not all of them). The Act identifies only ten broad categories of health benefits that are covered,85 and then it directs the Secretary of the Department of Health and Human Services (HHS) to define these benefits.86 But, that is not what happened. Instead of developing a uniform benefit package to apply nationwide, HHS adopted regulations that give only guidelines, which vary state-by-state87 and allow insurers to make actuarially equivalent changes.88 So, for example, insurers may opt to cover different types of prescription drugs, or different forms and amounts of physical or occupational therapy, as long as the health care costs they cover for the average enrollee stay the same. This all means that a seriously injured person cannot depend on having coverage for a needed item or service. Also, even though the Act prohibits annual and lifetime dollar limits on benefits,89 insurers are allowed to convert such limits into actuarially equivalent service or visitation limits.90 For example, South Carolina’s plan limits inpatient mental health, behavioral health, and substance abuse disorder services to seven days per year;91 and Kansas’ benchmark covers only three home health care visits per year.92 On top of that, the maximum OOP limit of a person’s financial responsibility does not apply to bills from out-of-network providers. The Act’s cost-sharing protections apply only to items and services delivered by in-network health care providers. If individuals seek care from an out-of-network provider, they will be responsible for the difference between what the insurer paid (if anything) and what the provider charged, and the amount they spend will not count toward their OOP limit.93 Because insurers increasingly rely on narrow networks to contain costs, enrollees may frequently be forced to choose between paying significantly more to see the provider of their choice and paying less for in-network care. And, with little information publicly available about different health care providers’ charges for the same services,94 patients may not be aware of the financial risk they take on by going out of network. Also, predicting whether a provider will be in-network can be difficult. In the initial year of health insurance exchange operations, consumers frequently found that provider directory lists were outdated or inaccurate.95 Even when people confirm that the medical provider they plan to go to for procedures is in-network, they may face unexpected bills from ancillary providers, such as anesthesiologists or radiologists, who participated in their care but do not accept most or any insurance.96 www.FloridaJusticeAssociation.org | July/August 2016 | 55

FJAAPPELLATEPRACTICESECTION And, those amounts can be enormous: A 2012 report by the New York State Department of Financial Services found that the average bill for out-of-network radiology services was more than 33 times Medicare’s allowed charge, and the average bill for out-of-network care by assistant surgeons, who are frequently brought in without patients’ knowledge, was 21 times what Medicare would pay.97 So, even if someone is covered by a plan that offers a comprehensive set of benefits, he or she may well face high bills due to limitations in the plan’s network.

if it continues, will continue at the same level. By denying the victim full compensation for the cost of future care, the majority opinion transfers the responsibility for the tort from the tortfeasor, where it legally and morally belongs, to the victim and the community. I cannot agree that an injured victim should be required to seek charity or public aid, or that the compassion of charitable contributors and taxpayers should become a device for reducing the legal liability of a tortfeasor.106

Worse yet, many insurance plans are exempt from some or all of the Act’s coverage requirements. For example, only new, fully insured individuals and small group plans are required to provide the essential benefits.98 Fully insured large group plans and self-insured group plans of all sizes must comply with the OOP limit, but they do not need to provide these benefits, so the package of covered benefits to which the limit applies may be very narrow.99 For example, some large retail stores offer their part-time workers “prevention-only” plans.100 Purchasing such coverage allows workers to meet the individual mandate requirements, but provides no protection against medical costs due to injury. Plus, grandfathered plans that existed before the Act was passed and have not materially changed are not required to comply with the rules regarding essential benefits and cost-sharing.101 And, health insurers may continue to renew plans through October 1, 2016, that do not comply with many of the Act’s market reforms, including the essential benefits and the cost-sharing rules.102 The end result is that many people will be covered by health insurance plans that are not subject to some or all of the Act’s reforms. This further weakens defendants’ arguments that the Act covers a plaintiff’s medical care.

While all of this was written in the context of Medicare and Medicaid, the rationale applies equally and fully to whether the Act will continue in the future to require the coverage that defense attorneys count on. And, there’s already evidence that this assumption is wrong because the Act is not being uniformly enforced. Part of that is because, in many states, governmental enforcement is uncertain. The Act pushes enforcement down to the states, but the governors of at least five states have refused to enforce it.107 And, at least 22 states have reported limits on their authority to impose the Act.108

Fourth, defendants’ argument that the Act eliminates the collateral source rule for future medical expenses fails because it assumes that the Act and its required coverage will exist. In fact, the Florida Supreme Court has arguably already rejected this argument in the recent Joerg decision, where it held: “Moreover, it is absolutely speculative to attempt to calculate damage awards based on benefits that a plaintiff has not yet received and may never receive, should either the plaintiff’s eligibility or the benefits themselves become insufficient or cease to continue.”103 The court went on to explain: The continued existence and sufficient funding of public services depend upon legislative action, which is by no means a predictable matter: “To encourage juries to mitigate damages based on tenuous public resources forces plaintiffs, like the foolish house builder in the parable, to rebuild lives on shifting sands. The floods may come, and the winds blow, and great will be the fall.” In cases that involve presumptive Medicare reimbursements, it is even more speculative to anticipate a reduction of future damages because the structure of the MSPA is intended to prevent Medicare from paying if there is forthcoming payment from a primary payer.104 In support, the Supreme Court cited with approval to the dissenting opinion in Stanley,105 which explained: There is simply no assurance that public assistance will continue, that the injured victim will continue to be eligible for such assistance if it continues, or that the assistance, 56 | July/August 2016 | www.FloridaJusticeAssociation.org

The Act addresses this possibility, conferring authority on the federal government to enforce the Act when a state fails to do so.109 But, the federal government hasn’t stepped in yet.110 And, the federal government has granted numerous waivers, delays, and safe harbors to insurers and employers that are unable or unwilling to comply with ACA requirements.111 Indeed, the federal government has said that it will not impose civil monetary penalties against insurers offering health plans in a federally facilitated exchange in 2014 so long as they are making “good faith efforts” to comply with applicable standards.112 Likewise, Congress has refused to provide funding for critical portions of ACA, and the House of Representatives is presently challenging expenditures made by the Department of Health and Human Services pursuant to ACA.113 Florida has been openly hostile to ACA from the beginning and, as a result, falls far short of having universal access to affordable (let alone free) insurance coverage. Florida was the first state to file suit against the law, doing so on the day the President signed it.114 That lawsuit resulted in the Supreme Court decision that holds that ACA’s expansion of Medicaid is optional for the states.115 In April 2015, Florida filed another lawsuit against the Department of Health and Human Resources, accusing the federal government of trying to coerce the state to expand Medicaid under ACA.116 Florida has also refused to accept funds for the expansion of Medicaid in the state and has refused to apply for a waiver that would allow the state to implement a variation of expanded Medicaid.117 By statute, Florida prohibited its Office of Insurance Regulation from regulating premium rates for individual and small group health insurance plans and HMO plans during the early years of the implementation of ACA.118 Florida also adopted an entire new chapter of the Florida Statutes to stringently regulate the “navigators” authorized by 42 U.S.C. §18031 to help guide individuals through the maze of obtaining coverage under ACA by adoption.119 All of this means that the two instances where medical expenses are still protected by the common law collateral source rule (future medical expenses, and those past medical expenses subject to subrogation) should survive this latest attack on personal injury plaintiffs in Florida. __________

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FJAAPPELLATEPRACTICESECTION See John G. Fleming, The Collateral Source Rule and Loss Allocation in Tort Law, 54 Calif. L. Rev. 1478, 1478 (1966); see also Richard C. Maxwell, The Collateral Source Rule in the American Law of Damages, 46 Minn. L. Rev. 669 (1962) (examining different types of collateral source benefits including insurance proceeds, employment benefits, gratuities, and social legislation benefits). 2 Propeller Monticello v. Mollison, 58 U.S. 152, 155 (1854). 3 Michael I. Krauss & Jeremy Kidd, Collateral Source and Tort’s Soul, 48 U. Louisville L. Rev. 1 (2009). 4 Adam G. Todd, An Enduring Oddity: The Collateral Source Rule in the Face of Tort Reform, the Affordable Care Act, and Increased Subrogation, 43 McGeorge L. Rev. 965 (2012). 5 Nora J. Pasman-Green & Ronald D. Richards Jr., Who is Winning the Collateral Source Rule War? The Battleground in the Sixth Circuit States, 31 U. Tol. L. Rev. 425, 427 (2000). 6 Bangert v. Beeler, 470 So.2d 817 (Fla. 1st DCA 1985); Robert E. Owen & Assoc v. Gyongyosi, 433 So.2d 1023 (Fla. 4th DCA 1983); Janes v. Baptist Hosp. of Miami, Inc., 349 So.2d 672 (Fla. 3d DCA 1977); Walker v. Hilliard, 329 So.2d 44 (Fla. 1st DCA 1976). 7 Gormley v GTE Products Corp., 587 So.2d 455, 457 (Fla. 1991); Janes v. Baptist Hosp. of Miami, Inc., 349 So.2d 672, 673 (Fla. 3d DCA 1977); Paradis v. Thomas, 150 So.2d 457, 458-59 (Fla. 2d DCA 1963); see also Burke v. Byrd, 188 F. Supp. 384, 386 (N.D. Fla. 1960). 8 Gormley, 587 So.2d at 458-59. 9 Id.; Sheffield v. Superior Ins. Co., 800 So.2d 197, 200 n.3 (Fla. 2001); Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So.3d 1084, 1086 (Fla. 1st DCA 2010); Goble v. Frohman, 848 So.2d 406, 410 (Fla. 2d DCA 2003), affirmed, 901 So.2d 830 (Fla. 2005); see generally See Larry D. Warren & Nathan L. Mechler, Paid or Incurred and the Collateral Source Rule Across the Country, 59 Fed’n Def. & Corp. Couns. Q. 203-06 (2009). 10 The only exception to the collateral source rule is if the evidence is relevant to another issue, but then the evidence still cannot be used to reduce the plaintiff’s damages award. Finley P. Smith, Inc. v. Schectman, 132 So.2d 460 (Fla. 2d DCA 1961) (impeaching plaintiff regarding paying bills which insurer actually paid). And, the evidence may still be inadmissible because it is unduly prejudicial. Williams v. Pincombe, 309 So.2d 10 (Fla. 4th DCA 1975); Cook v. Eney, 277 So.2d 848 (Fla. 3d DCA 1973). 11 David Schap & Andrew Feeley, The Collateral Source Rule: Statutory Reform and Special Interests, 28 Cato J. 83, 89 tbl.1 (2008). 12 Alaska Stat. Ann. §9.17.070 (allowing for post-verdict damages reductions based on collateral sources); Fla. Stat. Ann. §768.76(1) (requiring post-verdict reduction of collateral sources but retaining the rule pre-trial); Mich. Comp. Laws Ann. §550.1401(5) (permitting health insurance subrogation); Id. §600.6303 (requiring post-verdict collateral source reduction); Minn. Stat. Ann. §548.251 (allowing post-verdict damages reduction of collateral sources); N.Y. C.P.L.R. 4545(c). 13 Goble v. Frohman, 901 So.2d 830, 832 (Fla. 2005); Cooperative Leasing, Inc. v. Johnson, 872 So.2d 956, 959 (Fla. 2d DCA 2004). 14 Goble, 901 So.2d at 832. 15 See, e.g., Goble, 901 So.2d at 832 (past medical expenses); State Farm Mutual Auto. Ins. Co. v. Gulledge, 850 So.2d 631 (Fla. 1st DCA 2003) (past lost earning ability). 16 §768.76(1), Fla. Stat. 17 Rudnick, 761 So.2d at 293. 18 Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla. 2000). 1

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Bravo v. United States, 403 F. Supp. 2d 1182, 1199 n.13 (S.D. Fla. 2005) (no setoff for future Medicaid payments); White v. Westlund, 624 So.2d 1148, 1153 (Fla. 4th DCA 1993) (future payments are not collateral sources); Measom v. Rainbow Connection Preschool, Inc., 568 So.2d 123, 124 (Fla. 5th DCA 1990) (reduction not permitted for unearned collateral source benefits dependent on future employment); Swamy v. Hodges, 583 So.2d 1095, 1096-97 (Fla. 1st DCA 1991) (reduction not permitted for future social security benefits). 20 §768.76(1), Fla. Stat.; Joerg v. State Farm Mutual Auto. Ins. Co., 176 So.3d 1247, 1249 (Fla. 2015); Measom v. Rainbow Connection Preschool, 568 So.2d 123, 124 (Fla. 5th DCA 1990). 21 Joerg v State Farm Mut. Auto. Ins. Co., 176 So.3d 1247, 1249 (Fla. 2015). 22 Hughes v. Enter. Leasing Co., 831 So.2d 1240, 1241 (Fla. 1stDCA 2002); Centex-Rodgers Constr. Co. v. Herrera, 761 So.2d 1215 (Fla. 4th DCA 2000); Economy Fire & Casualty Co. v. Obenland, 629 So.2d 265 (Fla. 2d DCA 1993). 23 1993 Fla. Laws 93-245, §4. 24 §768.76(6)-(9), Fla. Stat. 25 §768.76(4), Fla. Stat. 26 Joerg, 176 So.3d at 1249. 27 Id. at 1253-55. 28 See, e.g., Davis v. Roberts, 130 So.3d 264 (Fla. 5th DCA 2013); Agency for Health Care Admin. v. Riley, 119 So.3d 514 (Fla. 2d DCA 2013). 29 Grell v. Bank of America Corp., Case No. 3:05-cv-1237-J-32HTS, 2007 WL 1362728, *1-3 (M.D. Fla. 5-7-07). 30 Id. 31 §768.76(1), Fla. Stat. 32 587 So.2d at 457 (citing 3 Jerome H. Nates et al., Damages in Tort Actions §17 (1988) ( “[T]he plaintiff may have paid substantial premiums over a long span of time without ever having received benefits. The costs of premiums may, in fact, far exceed the benefits received.”). 33 Id. at 455. 34 Conn. Gen. Stat. Ann. §52.225a(c). 35 Pikulski v. Waterbury Hosp. Health Ctr., 848 A.2d 373, 377 (Conn. 2004). 36 Further contrast, for example, statutes that specifically identify the period of premiums recovered. See, e.g., 548.251(1)(2), Minn. Stat. Ann. (offsets collateral source reduction by any insurance premiums payments the plaintiff made in the two-year period immediately before the action accrued). 37 Some decisions have assumed that much more compensation is required. See Helfend v. S. Cal. Rapid Transit Dist., 465 P.2d 61, 66 (Cal. 1970) (finding that a person who has invested years of premiums to acquire insurance should benefit from his thrift—not the tortfeasor). 38 Ann S. Levin, The Fate of the Collateral Source Rule After Healthcare Reform, UCLA Law Review (Feb. 2013). 39 880 So.2d 557, 560-61 (Fla. 2004). 40 Id. 41 Sheffield v. Superior Ins. Co., 800 So.2d 197, 200 (Fla. 2001). 42 Nationwide Mut. Fire Ins. Co. v. Harrell, 53 So.3d 1084, 1082 (Fla. 1st DCA 2010). Contrast some states that have modified the common law collateral source rule to allow juries to be told of the discount, often as part of tort reform, and often noting that a medical provider’s bills are illusionary or phantom charges. Lori A. Roberts, Rhetoric, Reality and the Wrongful Abrogation of the Collateral Source Rule in Personal Injury Cases, 31 Rev. Litig. 99, 124-31 (discussing rhetorical themes 19

of illusory medical bills and windfalls in states modifying or abolishing the collateral source rule). 43 Harrell, 53 So.3d at 1082. 44 Gormley, 587 So.2d at 458 45 Durse v. Henn, 68 So.3d 271, 275-77 (Fla. 4th DCA 2011) 46 See Gormley v. GTE Products Corp., 587 So.2d 455, 458 (Fla. 1991). 47 Id. (internal citations and quotations omitted). 48 Cf. Deklyen v. Truckers World, Inc., 867 So.2d 1264, 1268 (Fla. 5th DCA 2004) (a jury cannot award past economic damages without also awarding past noneconomic damages where it is uncontroverted that the plaintiff has experienced pain and suffering). 49 Robinson v. Bates, 828 N.E.2d 657, 673 (Ohio App. 2005) (emphasis added). 50 Caruso v. Baumle, 880 So.2d 540, 542 (Fla. 2004). 51 §627.736(3), Fla. Stat. 52 Caruso, 880 So.2d at 542. 53 452 So.2d 514, 515 (Fla. 1984). 54 Winston Towers 100 Ass’n., Inc. v. DeCarlo, 481 So.2d 1261, 1262 (Fla. 3d DCA 1986). 55 868 So.2d 547, 551 (Fla. 4th DCA 2003). 56 Coop. Leasing, Inc. v. Johnson, 872 So.2d 956, 958 (Fla. 2d DCA 2004). 57 See Joerg, 176 So.3d 1247, 1251. 58 Id. at 1256-57; see also Go. v. Normil, 184 So.3d 554, 557 (Fla. 4th DCA 2016) (applying Joerg to affirm exclusion of governmental or charitable benefits). 59 Id. 60 Id. at 1255 (citing Eichel v. N.Y. Cent. R.R. Co., 375 U.S. 253, 255 (1963); Sheffield, 800 So.2d at 203-04). 61 Gormley, 587 So.2d at 458 (internal citations and quotations omitted). 62 Joerg, 176 So.3d at 1255 (citing Parker v. Hoppock, 695 So.2d 424, 428 (Fla. 4th DCA 1997) (“The very image of a plaintiff as one who accepts governmental hand-outs carries a substantial likelihood of prejudice that outweighs any marginal probative value.”)). 63 Id. at 1253 n.3. 64 Id. 65 See id. (Medicare benefits are not an exception to the evidentiary collateral-source rule); Harrell, 53 So.3d at 1087 (private insurance benefits are covered by evidentiary collateral-source rule). 66 See Harrell, 53 So.3d at 1087. 67 A couple of law review articles offer more detail. See Andrew F. Popper, The Affordable Care Act is Not Tort Reform, 65 Cath. U. L. Rev. 1 (Fall 2015); Adam G. Todd, An Enduring Oddity: The Collateral Source Rule in the Face of Tort Reform, the Affordable Care Act, and Increased Subrogation, 43 McGeorge L. Rev. 965 (2012). 68 One Florida trial court has already held that evidence of ACA is inadmissible. Thompson v. Children’s Ear, Nose and Throat Assoc., Case No. 2011-CA-16-0 (9th Judicial Circuit 5-5-16) (attorney Barbara Green). Other courts around the country have reached the same conclusion. Rogge v. Estes Express Lines, 2014 WL 5824766 (N.D. Ohio 2014); Halsne v. Avera Health, 2014 WL 1153504 (D. Minn. 2014); CSC v. United States, 2013 WL 6795723 (S.D. Ill. 2013); Vasquez-Sierra v. Hennepin Faculty Assocs., 2012 WL 7150829 (Minn. Dist. Ct. 2012); Brewster v. Southern Home Rentals, LLC, 2012 WL 6101985 (M.D. Ala. 2012); Deeds v. University of Pa. Med. Ctr., 110 A.3d 1009 (Pa. Super. 2015); Leung v. Verduga Hills Hosp., 2013 WL 221654 (Cal.

App. 2013). 69 42 U.S.C. §18041(d). 70 Goble, 901 So.2d at 832. 71 As a result of the well-established recognition of contractual subrogation, most health insurance contracts now provide for subrogation and reimbursement. Allen E. Korpela, Annotation, Right of “Blue Cross” or “Blue Shield,” or Similar Hospital or Medical Service Organization, to be Subrogated to Certificate Holder’s Claims Against Tortfeasor, 73 A.L.R.3d 1140, 1147-48 (1976). But, this “well-settled” common law rule permitting contractual subrogation has come under assault by courts and legislatures restricting the subrogation rights of the insurers in favor of the insured’s right of full compensation in tort actions. See, e.g., Blue Cross & Blue Shield of Mass. v. Trull, Civ. A. No. 93-02026, 1995 WL 419946 (Mass. Super. Ct. Mar. 31, 1995). This article does not explore the scope of insurance subrogation available in Florida. 72 Dept, of Health & Human Servs., Off. of the Asst. Sec. for Plan & Evaluation, Issue Brief: Summary Enrollment Report for the Initial Annual Open Enrollment Period 9 (May 1, 2014). 73 The Congressional Budget Office attributes $3.36 trillion to the employer-sponsored health insurance tax exclusion and $920 billion to credits for premiums in health insurance exchanges. Cong. Budget Office, Pub. No. 4308, The Distribution of Major Tax Expenditures in the Individual Income Tax System 6 (May 2013). 74 See e.g. Brown v. Stewart, 129 Cal. App. 3d 331, 341 (Cal. App. 3d Dist. 1982) (“We do not perceive it was the intent of the legislature to bail out doctors and other health providers by the use of public funds.”); Jordan v. Long Beach Community Hosp., 248 Cal. Rptr. 651, 660 (Cal. App. 2d Dist. 1988) (“The Brown court’s reasoning with respect to Medi-Cal payments is equally true with respect to the Medicare payments involved here.”). 75 See Jay Angoff, The Future of Future Medical Damages, 50-Oct. Trial 16 (Oct. 2014); see also Seth L. Cardeli, Thwart the Assault on Future Medical Expenses, Trial 14 (May 2014). 76 Natl. Fedn. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2596-97 (2012). 77 Price water house Coopers LLP, PwC Health Research Inst., Health Insurance Premiums: Comparing ACA Exchange Rates to the Employer-Based Market 2 (2014), www.pwc.com/us/en/health-industries/ health-research-institute/assets/pwe-hri-health-insurance-premium. pdf. 78 26 U.S.C. §5000A(d), (e) (2012). 79 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). Burwell involved for-profit corporate employers. On November 6, 2015, the Supreme Court granted certiorari to review seven cases involving the rights of non-profit charities, schools, colleges and hospitals to object to portions of ACA on religious grounds. Order granting certiorari, Nov. 6, 2015, www.supremecourt.gov/orders/courtorders/11061zr_j4ek. pdf. 80 Cong. Budget Off., Pub. No. 45397, Payments of Penalties for Being Uninsured Under the Affordable Care Act: 2014 Update 1 (2014). 81 Id. 82 See, e.g., Staff, Appropriations Committee, Bill Analysis and Fiscal Impact Statement, CS/CS/SB 2-A (June 2, 2015), http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=2015s0002A. ap.DOCS&DocumentType=Analysis&BillNumber=0002A&Session=2015A; see also, e.g., The Henry J. Kaiser Family Foundation, The Kaiser Commission on Medicaid and the Uninsured, The Coverage Gap:

www.FloridaJusticeAssociation.org | July/August 2016 | 59

FJAAPPELLATEPRACTICESECTION

Uninsured Poor Adults in States that Do Not Expand Medicaid—An Update, http://kff.org/health-reform/issue-brief/the-coverage-gap-uninsured-poor-adults-in-states-that-do-not-expand-medicaid-an-update/. 83 45 C.F.R. §155.410(e). 84 45 C.F.R. §155.420(d). 85 The ten categories are ambulatory patient services; emergency services; hospitalization; maternity and newborn care; mental health and substance use disorder services, including behavioral health treatment; prescription drugs; rehabilitative and habilitative services and devices; laboratory services; preventive and wellness services and chronic disease management; and pediatric services, including oral and vision care. 42 U.S.S. §18022(b)(1). 86 Inst. of Med., Essential Health Benefits: Balancing Coverage and Cost (Oct. 6, 2011), www.com.edu/Reports/2011/Essential-Health-Benefits-Balancing-Coverage-and-Cost.aspx. 87 45 C.F.R. §156.100. 88 45 C.F.R. §156.115(b). 89 42 U.S.C. §300gg-11. 90 Ctrs. for Medicare & Medicaid Servs., Frequently Asked Questions on Essential Health Benefits Bulletin 4 (2012). 91 Ctrs. for Medicare & Medicaid Servs., S.C. EHB Benchmark Plan, www.cms.gov/CCIIO/Resources/Data-Resources/Downloads/ south-carolina-ehb-benchmark-plan.pdf. 92 Ctrs. for Medicare & Medicaid Servs., Kansas EHB Benchmark Plan, www.cms.gov/CCIIO/Resources/Data-Resources/Downloads/ kansas-ehb-benchmark-plan.pdf. 93 42 U.S.C. §18022(c)(3)(B). 94 See e.g. Steven Brill, Bitter Pill: Why Medical Bills Are Killing Us, Time (Mar. 4, 2013). 95 See e.g. Melinda Beck, Doctors Fault Provider Lists Exchanges Get From Insurers, Wall St. J. (Oct. 30, 2013). 96 Karen Pollitz et al., Henry J. Kaiser Fam. Found., Medical Debt Among People with Health Insurance 10 (Jan. 7, 2014). 97 N.Y. St. Dept. of Fin. Servs., An Unwelcome Surprise: How New Yorkers Are Getting Stuck With Unexpected Medical Bills From Out-ofNetwork Providers 19 (Mar. 7, 2012). 98 42 U.S.C. §300gg-6(a). 99 42 U.S.C. §300gg-6(a), (b). 100 See e.g. My Lowe’s Benefits, 2014 Medical and Prescription Drugs, http://mylowesbenefits.com/part-time/medical-prescription-drugs. 101 42 U.S.C. §18011(a) (2012 ). Most benefit packages change slightly every year. The grandfathered rules define “material change” very strictly, so most of these changes are considered material and eliminate grandfather protection for these plans. 102 Ctrs. for Medicare & Medicaid Servs., Memo, from Gary Cohen, Dir., Ctr. for Consumer Info. & Ins. Oversight, Insurance Standards Bulletin Series-- Extension of Transitional Policy Through October 1, 2016 (Mar. 5, 2014), www.cms.gov/CCIIO/Resources/ Regulations-and-Guidance/Downloads/transition-to-compliantpolicies-03-06-2015.pdf. 103 176 So.3d at 1255. 104 Id. at 1255-56. 105 Id. at 1255. 106 452 So.2d at 517. 107 Katie Keith et al. The Commonwealth Fund, Implementing the Affordable Care Act: State Action on the 2014 Market Reforms 10 (Feb. 60 | July/August 2016 | www.FloridaJusticeAssociation.org

2013). www.commonwealthfund.org/media/Files/Publications/ Issue%20Brief/2013/1662_ Keith_implementing_ACA_state_action_2014_reform_brief_v2.pdf; See also Ctr. for Consumer Info. & Ins. Oversight, Ctrs. for Medicare & Medicaid Servs., Health Insurance Market Reform, Compliance, www.cms.gov/CCIIO/-Pragrams-and-Initiatives/Health-Insurance-Market-Reforms/compliance. html. 108 Katie Keith et al. The Commonwealth Fund, Implementing the Affordable Care Act: State Action on the 2014 Market Reforms 2-3 (Feb. 2013). www.commonwealthfund.org/media/Files/Publications/ Issue%20Brief/2013/1662_ Keith_implementing_ACA_state_action_2014_reform_brief_v2.pdf 109 42 U.S.C. §300gg-22(a)(2). 110 Ctr. for Consumer Info. & Ins. Oversight, Ctrs. for Medicare & Medicaid Servs., 2015 Ltr. to Issuers in the Federally-Facilitated Marketplaces 7 (2014), www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/2015-final-issuerletter-3-14-2014. pdf. 111 See e.g. U.S. Dept. of Lab., Employee Benefits Sec. Admin., FAQs About the Affordable Care Act Implementation Part I, www.dol.gov/ ebsa/faqs/faq-aca.html. 112 Patient Protection and Affordable Care Act; Program Integrity: Exchange, SHOP, and Eligibility Appeals; Final Rule, 78 Fed. Reg. 54070, 54121 (Aug. 30, 2013). 113 United States House of Representatives v. Burwell, F. Supp. 3d , 2015 WL 294762 at *4 (D.D.C. Sept. 9, 2015). 114 NFIB, 132 S. Ct. at 2580. 115 Id. 116 See Complaint, Rick Scott v. United States Department of Health and Human Services, Case 3:15-cv-00193-RS-CJK (N.D. Fla). http://www. flgov.com/wp-content/uploads/2015/04/001-Complaint-Filed.pdf. 117 Florida House of Representatives CS/CS/SB 2A Health Insurance Affordability Exchange, http://www.myfloridahouse.gov/Sections/ Bills/billsdetail.aspx?BillId=54749; see also, e.g., New York Times, Health Care Expansion is Rejected in Florida (June 5, 2015), http:// www.nytimes.com/2015/06/06/us/health-care-expansion-is-rejected-in-florida.html. 118 §627.410(9), Fla. Stat. (2013); §641.31(3)(f )(1), Fla. Stat. (2013). 119 §626.995-626.9958, Fla. Stat. (2013).

Celene Humphries

is a founding shareholder of Brannock & Humphries, a firm specializing in appeals and trial support, which has been twice named by Super Lawyers as the best small litigation firm in Florida. Ms. Humphries is board certified by The Florida Bar as a specialist in appellate practice. She is the originator and chair of the FJA’s recurring Case Law Insider seminar, a long-time author of FJA amicus briefs, and a former chair of the FJA’s appellate section. She is recognized by numerous “Best Lawyer Lists,” including Best Lawyers in America, Florida Trend Legal Elite, and Super Lawyers. And, the FJA awarded Ms. Humphries the S. Victor Tipton Award for superior achievement in legal writing and commitment.

WEBINARS

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ANNUAL REVIEW: LEGISLATIVE & CASE LAW UPDATE WEBINAR $79; $49 for Young Lawyers 2 Hours of General CLE, 2 Hours of Civil Trial Certification

UM REJECTIONS WEBINAR $39; $29 for Young Lawyers 1 Hour of General CLE, 1 Hour of Civil Trial Certification

PROPOSALS FOR SETTLEMENT WEBINAR $199; $129 Young Lawyers; $99 Paralegals 3.5 Hours of General CLE; 0.5 Hour of Ethics; 3.5 Hours of Civil Trial Certification

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ELECTRONIC DISCOVERY AMENDED RULES IMPACT, SOCIAL MEDIA AND EMERGING TECHNOLOGIES WEBINAR $49; $39 for Young Lawyers 1 Hour of General CLE, 1 Hour of Ethics, 1 Hour of Civil Trial Certification

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ORDER ANY OF THESE WEBINARS ONLINE OR CALL THE FJA CLE DEPARTMENT AT (850) 521-1097.

MEMBEROUTREACH

CONVENTION HIGHLIGHTS 1. Vanessa Brice presents the Young Lawyers Section Mickey Smiley Award to FJA Executive Director Debra Henley. 2. General Hugh Shelton delivers the keynote presentation at the Justice Luncheon.

3. FJA EAGLE Recruiting Champion Robert Rubenstein and his fiancé, Janice Santiago pose with the painting generously donated each year by artist Trevor Goring to the recipient of the award. 4. Todd Copeland was the recipient of the Central Florida Trial Lawyers Lombardi Award. [Pictured: Mike Damaso, Tiffany Faddis, Todd Copeland, Glenn Klausman]

5. An Uncle Sam on stilts entertains the crowd at the FJ PAC Kick-Off and Candidates Reception. 6. EAGLE Centurion Award Recipients: Alex Alvarez, Ted Leopold, Troy Rafferty, Dale Swope 7. FJA President Jimmy Gustafson addresses the audience at the Presidential Luncheon 8. Troy Rafferty roasts Todd Copeland with his young nieces at the President’s Big Bash.

9. Paul Anderson and his wife Pam pose with the Instagram Frame at the President’s Big Bash. 10. Kim Driggers, Todd Copeland, Andreina Figueroa, Heather Lamoureux and Gary Farmer take a break from dancing to smile in this photo at the President’s Big Bash.

SPECIAL THANK YOU TO ANNUAL CONVENTION SPONSORS & EXHIBITORS As you know, Business Friends of EAGLEs are companies that do business with FJA members and make the choice to pay more to help support our mission. They work closely with us and repeatedly support our many activities. They have demonstrated time and again they will stand with the FJA in our battles to protect Florida's Civil Justice System. And, because they are aware of the threats we face, they have stepped forward and given extra to support FJA advocacy through EAGLE. Please join us in thanking them for their support. EAGLE BUSINESS LEGACY NeuLife NFP Structured Settlements Sabadell United Bank Synergy Settlement Services EAGLE BUSINESS ADVOCATE Affiliated Healthcare Centers Robson Forensic, Inc. EAGLE BUSINESS BENEFACTOR BEC Consulting, LLC Esquire Bank Image Resources of Florida Level Insurance LRG Settlement Advisors Panhandle Orthopaedics Visual Evidence EAGLE BUSINESS PATRON Black Diamond Funding Fast Funds, Inc. 5 Star Legal Funding

LegalFeeGuard® Momentum Funding EAGLE BUSINESS SPONSOR Client Legal Funding Forensic Human Factors, LLC Global Engineering & Scientific Solutions, LLC High Impact, Inc. Injury Funds Now Images of Justice Millennium Settlements Optcapital Physician Life Care Planning Soan Chau & Associates The Centers Upchurch, Watson, White & Max Witnex ANNUAL CONVENTION EXHIBITORS/SPONSORS: Action Physical Therapy/FL Ortho Ametros Financial

ARCCA, Inc CaseMetrix, LLC CEPAC, Inc. Cherokee Funding Coral Gables Trust CourtScribes, Inc. Crossroads Investigations Ethan Todd Clothiers First Green Bank Family Network on Disabilities Hospital Experts Law Cash LexisNexis Neural IT Prevail Case Management Software Ringler Associates Settlement Professionals Inc. of Florida Strategic Capital Trauma Revenue Solutions Veritext Video Law Services, Inc. Vocational Economics

$7,500 RAISED FOR THE FJA RESEARCH & EDUCATION FOUNDATION! Thank you Dr. Barry Burak, CEO and Founder of Affiliated Health Centers, Inc. for donating this Salvador Dalí Mountain Scene Lithograph to benefit the FJA Research & Education Foundation (REF). The work was displayed and offered in a silent auction during the FJA Annual Convention. Congratulations to Lee Gunn who won the auction with the highest bid. Dr. Burak has one of the most extensive Salvador Dalí collections in the United States. He is a passionate supporter of the Florida Justice Association and the organization’s efforts to recruit and train Florida’s young personal injury attorneys. The Business EAGLE Advocate has committed to donate and auction off a work from his collection to benefit the REF at future FJA Annual Conventions. The REF supports FJA programs such as the Honorable Earle E. Zehmer Mock Trial Competition, Law School Outreach and other Young Lawyer Outreach events. www.FloridaJusticeAssociation.org | July/August 2016 | 63

MEMBEROUTREACH

MEMBER OUTREACH 1.The Women’s Caucus hosted a successful leadership retreat in conjunction with the 2016 Annual Convention. 2. Nick Johnson, Chair of the FJA Young Lawyers Task Force, raises his glass to the momentum building around recruiting, engaging and developing more young attorneys in the FJA. 3. FJA Deputy General Counsel, G.C. Murray, Jr., talks with Paul Brannon at the Fort Walton Membership Appreciation Reception.

4. Members gather for a legislative and political update from FJA Legislative & Political Director, Jeff Porter, at the Miami Membership Appreciation Reception at Phil Gold’s home. 5. FJA Members support member candidates at the 2016 Florida Democratic Party Leadership Gala. [Left to right: John Fox, Richard Chait, Anthony Quackenbush, Senator Jeff Clemens, Senator Clemens’ wife, FJA President Jimmy Gustafson and Leslie Kroeger ] 6. The Lytal, Reiter, Smith, Ivey & Fronrath firm hosted a fundraiser to support FJA Member Gary Farmer running for Florida Senate District 34. [Left to right: Fred Cunningham, Kristin Broner, Lance Ivey, Gary Farmer, Rob Paulk, Trey Lytal] 7. The Lawlor, White Murphey firm collected school supplies for students in Broward County schools. [Left to right: Ben Murphey, Anthony White and Don Lawlor] 8. FJA EAGLE and Board of Directors Member, Julie Kane, is sworn in as President of the American Association for Justice.

64 | July/August 2016 | www.FloridaJusticeAssociation.org

EAGLESPOTLIGHT

THANK YOU EAGLEs In recognition for unwavering commitment to the EAGLE program, we recognize the following upgraded, new or returning EAGLE members. FOUNDER - $25,000

Celene Humphries Brannock & Humphries, P.A. Upgraded

BENEFACTOR - $10,000

Sean C. Domnick Domnick Cunningham & Whalen, LLC Upgraded by Fred A. Cunningham

John S. Mills The Mills Firm Recruited by James W. Gustafson, Jr.

PATRON - $5,000

Jeanmarie Whalen Domnick Cunningham & Whalen, LLC Upgraded by Fred A. Cunningham

SPONSOR - $3,000 Michael J. Overbeck

Schuler, Halvorson, Weisser & Zoeller, P.A.

John W. Roberts

Roberts Law Group, PLLC Recruited by H.L. (Larry) Perry

ASSOCIATE - $1,500 Christopher Calkin The Law Offices of Christopher P. Calkin, P.A. Recruited by Jason F. Lamoureux

Mike N. Koulianos The Law Offices of Christopher P. Calkin, P.A. Recruited by Jason F. Lamoureux

Courtney Brewer The Mills Firm Recruited by John S. Mills

Andrew D. Manko The Mills Firm Recruited by John S. Mills

Thomas J. Seider Brannock & Humphries, P.A. Recruited by Celene Humphries

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

Since May 1, 2016 Recruiter Name

Recruiting Value

James W. Gustafson, Jr. Fred A. Cunningham Philip A. Gold Jason F. Lamoureux T. Michael McLeod Alexander Murphree Clem Ricardo M. Martinez-Cid

# of Recruits

$15,000 $10,000 $10,000 $10,000 $10,000 $ 5,000 $ 5,000

2 1 1 2 2 1 1

Recruiter Name

Recruiting Value

John S. Mills H.L. (Larry) Perry Vanessa Brice Richard E. Chait Celene Humphries Matthew Nichols Posgay Michael J. Winer

THANK YOU EAGLEs

# of Recruits

$3,000 $3,000 $1,500 $1,500 $1,500 $1,500 $1,500

2 1 1 1 1 2 1 As of 7/31/16

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

BUSINESS SPONSOR - $3,000

Recruited by Philip A. Gold

You Can Find Your Fellow Member Attorneys on our FJA Website If you need to contact an FJA member or refer a case, you can find an attorney by searching FJAâ&#x20AC;&#x2122;s Online Membership Directory, which allows you to search for members by name, firm, city or practice area.

EAGLE Legend $100,000 Lifetime Contribution

EAGLELEGENDGARYM.COHEN

EAGLE Legend EAGLE Legends exemplify the legacy established by the FJA Founders. You hold the distinction of leading at the highest $100,000 Lifetime Contribution by forging new pathways of achievement with an unwavering commitment to justice...this legacy endures. EAGLE Legends exemplify the legacy established by the FJA Founders. You hold the distinction of leading at the highest level by forging new pathways of achievement with an unwavering commitment to justice...this legacy endures.

Gary M. Cohen Grossman P.A. Gary Roth, M. Cohen

Grossman Roth, P.A.

“What counts in life is not the mere fact that we have lived. It is what difference we have made to the lives of others that will determine the significance of the life we lead.”

“IfMandela you tremble with indignation at every injustice – Nelson

then you are a comrade of mine.” -Ernesto Che Guevar

Gary M. Cohen has been practicing law in the State of Florida for more than 30 years and during that time has recovered at least half a billion dollars on behalf of tragically injured victims of medical malpractice. He concentrates his practice almost exclusively in the area of medical malpractice and has tried cases in almost every medical specialty, earning him national recognition in the field.

One of the highlights of Gary’s career is obtaining the largest verdict ever against the University of Florida in December

Gary M.onCohen been practicing lawwho in the State ofofFlorida for moreofthan 30 negligence. years and Induring that tim 2010 behalf ofhas a tragically injured woman lost one-third her brain because medical addition, recovered at least half a billion dollars on behalf of tragically injured victims of medical malpractice. He his string of litigation against the lack of neurosurgical care at Palm Beach County concentrates hisanpractice almost in the area of medical malpractice and has tried cases hospitals led to investigative reportexclusively by local newspapers, and ultimately a change in the standard of care in the Palmin almo Beach County hospital system. every medical specialty, earning him national recognition in the field. Gary’s experience and dedication to his career has earned him a membership in the exclusive American Board of Trial

One of the highlights of Gary’s career is obtaining the largest verdict ever against the University of Florid Advocates, and he served as Past President of the Broward County Trial Lawyers Association. He has also been selected to December 2010 onnational behalfmedical of a tragically woman lostAssociation one-thirdforofJustice her brain because of medic serve on one of the malpracticeinjured committees of thewho American and has been asked negligence. In addition, string of litigation againstmalpractice the lack of neurosurgical care at Palm Beach Coun to lecture across the United his States on topics relating to medical hospitals litigation.led to an investigative report by local newspapers, and ultimately a change in the standard of c the Palm Beach County hospital system. He is licensed to practice law in all Florida State Courts and Federal Courts and has litigated cases in every part of the State of Florida, as well as nationwide.

Gary’s experience and dedication to his career has earned him a membership in the exclusive American B of Trial Advocates, and he served as Past President of the Broward County Trial Lawyers Association. He h been selected to serve on one of the national medical malpractice committees of the American Associati NOTE: In the process Mr. Gary M. Cohen his generousacross contribution to the FJA EAGLE Program, by Ernesto "Che" Guevara was included, by a FJA Justice andof honoring has been asked toforlecture the United States ona quote topics relating to medical malpractice staff member without his knowledge, on Mr. Cohen's EAGLE tribute page. litigation. Ernesto Che Guevara's life and work runs counter to the principles of justice and freedom that the FJA stands for and it was an error to include his quote. (Read the full on article on Guevara's controversial life and work written by FJA EAGLE member Ricardo Martinez-Cid on Journal page 68.)

He is licensed to practice law in all Florida State Courts and Federal Courts and has litigated cases in ever ofWe the State ofCohen Florida, as brothers well and as sisters nationwide. apologize to Mr. and to our in the legal community who were also offended. We have taken steps to prevent such mistakes going forward. Here is the corrected version of Mr. Cohen's tribute page.

ERNESTO "CHE" GUEVARA FJA Board Member, Ricardo Martinez-Cid, Podhurst Orseck, PA

s has been acknowledged and apologized for, the Florida Justice Association recently allowed a quote from Ernesto "Che" Guevara to be included in one of its publications. To our association's credit, the error was immediately recognized and steps have been taken to ensure that a similar one does not occur in the future. Part of the problem is how prevalent misconceptions about Che are. This should not be surprising, as Cuba's totalitarian regime has made him the subject of extensive propaganda and virtual martyrdom. Che Guevara has been idolized and marketed extensively such that, to many, he's become a symbol of the fight against oppresion. In truth, his legacy is much more barbarous and should be abhorrent to those who value civil liberties. He should be particularly reviled by members of our organization. Che Guevara had no respect for the civil justice system. He engineered the "revolutionary justice" system in Cuba and earned the nickname "the Butcher of La Cabaña." La Cabaña is a colonial fortress where political prisoners in Cuba were incarcerated, tortured, and too often executed without due process. El Che heard the appeals from the show trials that were sometimes carried out, but was guided by political expediency rather than by whether the accused was guilty or not. Che Guevara recognized that "[w]e have imprisoned many people without knowing for sure if they were guilty. At the Sierra Maestra, we executed many people by firing squad without knowing if they were fully guilty." This did not trouble the oft-admired revolutionary. He believed that "[t]o send men to the firing squad, judicial proof is unnecessary. These procedures are an archaic bourgeois detail." Che Guevara oversaw the the creation of forced labor camps -- the Cuban Gulags where citizens could be sent for a variety of crimes such as practicing religion, homosexuality, political speech, or even playing rock music too loud. Although he is credited for having expanded literacy on the island, it is worth questioning how this benefitted a Cuban people who could no longer read anything that was not approved by the state -- including their bibles. Che Guevara was adamant that “[w]e must eliminate all newspapers; we cannot make a revolution with free press.”

68 | July/August 2016 | www.FloridaJusticeAssociation.org

And Che is often quoted or admired for speaking out against racial injustice. He chastised the Untied States for its mistreatment of blacks in a speech at the United Nations in 1964 (where he admitted “yes, we have executed, we are executing, we will continue to execute”). And he spoke out against apartheid and racism in Africa and other parts of the world. These positions, however, were politically advantageous as he felt they advanced the cause of Marxism and the overthrow of the bourgeoise. Che's diaries leave no doubt about his true beliefs regarding racial equality. He referred to blacks as "those magnificent examples of the African race who have maintained their racial purity thanks to their lack of an affinity with bathing." And believed that "[t]he black is indolent and a dreamer; spending his meager wage on frivolity or drink; the European has a tradition of work and saving, which has pursued him as far as this corner of America and drives him to advance himself, even independently of his own individual aspirations." When the rest of the world breathed a sigh of relief at the peaceful conclusion of the Cuban Missile Crisis, Che was furious. In an interview with the London Daily Worker, a Socialist periodical, he explained that "if the rockets had remained, we would have used them all and directed them against the very heart of the United States, including New York, in our defense against aggression." El Che believed that nuclear war and the death of millions was a price worth paying to advance the overthrow of the status quo and facilitate his Marxist revolution. He advocated for "two, three ... many Vietnams." He taught "[h]ate as a factor in the struggle, intransigent hatred for the enemy that takes one beyond the natural limitations of a human being and converts one into an effective, violent, selective, cold, killing machine." And he trained thousands of soldiers throughout the world to operate as these amoral engines of death. Che, the man, could not be further from Che, the pop icon. Recognizing mass-murdering megalomaniacs is the first step in ensuring we don't quote them favorably in the future.

INDEX

Index Attorneys fees, contingency risk multipliers, not justified where no showing that plaintiff would have had difficulty finding competent counsel...11, 20 fees, proposal for settlement, ambiguity invalidates proposal...45 fees, proposal for settlement, summary of recent cases adding to confusion and contradiction...19 Closing Argument, auto UM cases, discussion and practice tips...46 Collateral Sources, impact of the Affordable Care Act, history, discussion and practice tips...50 Defamation Florida Bar, Bar has absolute immunity in matters relating to the regulation of attorneys…12 hospital report to NPDB of adverse actions against physicians, statute of limitations runs from first publication of report…14 Discovery, questions about seeking legal advice, discovery re timing and from whom legal advice sought is permissible, but contents of advice is protected…12 Ecclesiastical Abstention Doctrine, suit against cemetery, allegation of misrepresentation that burial would follow Jewish customs and traditions…11 Emergency Rooms, anti-dumping statute...29 Environment, Lake Okeechobee algae bloom crisis, discussion of history, politics and litigation...30 Evidence alternative-causation, competent evidentiary link between harm and defendant’s theory required...40 business records, waiver of objection to timeliness of certification...41 hearsay exceptions, statements in medical records re particulars of an accident qualify...41 hearsay exceptions, trial tips re state of mind...40 hearsay, GPS data from ankle bracelet hearsay as proof of wearer’s location...41 statement of identification, qualifies as spontaneous statement...41 Expert Witnesses, Daubert standard, procedural in nature and can be applied retrospectively…12, 41 Hospitals, anti-dumping law, statute cannot support cause of action for failure to transfer as it is permissive rather than mandatory…12 Immunity, stand your ground law, immunity proven in criminal case applies in subsequent civil action…14 Insurance auto UM subrogation action, evidentiary hearing required where no liability determination yet re active tortfeasor...20 auto UM, UM coverage denied where liability coverage provided under same policy...22 bad faith, discussion of need to defend against insurance industry attempts to erode Powell doctrine...16 GEICO, recent sanctions are exposing insurer’s unfair discovery and trial tactics...19 property, list of recent sinkhole cases...20 Insurance rescission, misrepresentation by insured on application...22 Judges, senior judges, prohibited from serving as voluntary trial resolution judge or arbitrator in same circuit where presiding…10 Judgments, post-judgment interest, 2011 statutory amendment providing

for annual adjustment of interest rate cannot be applied to judgments under prior version of statute…10 Juries, reempaneling to correct a mistake, discussion re use and standards...42 Jurors, peremptory strike, no right to retract a strike to use on another juror in a criminal case…14 Legislature, future dates...12 Medical Care, consent for procedure on minor child, consent of only one parent required…11 Medical Malpractice discovery, statute of limitations...28 federal court verdict...28 presuit requirements, expert witness...28 presuit requirements, sanctions for failure to comply...28 statute of limitations, evidence...28 Negligence burden of proof, causation cannot be based on speculation, conjecture or inferences drawn from inferences…11 injury resulting from mistaken report to law enforcement re criminal conduct, reckless, culpable conduct to level of punitive damages required…10 residential psychiatric treatment facility, physical restraint case properly pled as negligence rather than malpractice...45 Pharmacists, compounding, duty of care in filling prescriptions includes a duty not to fill a facially unreasonable prescription without inquiry to prescribing physician…11 Pharmacy Malpractice, duty of care...29 Premises Liability, slip and fall, summary judgment error where depositions tended to show defendant’s knowledge of dangerous condition…12 Procedure amendment of pleadings, allow where record shows plaintiff may have a cause of action...44 dismissal, error to grant involuntary dismissal before plaintiff rests...44 involuntary dismissal, predicates for re-opening evidence...44 pleading, relation back of amendments to plead statutory cause of action...45 Products Liability pharmaceuticals; discussion and practice tips re kidney damage caused by proton pump inhibitors (e.g., the "purple pill") Sanctions §57.105 attorney’s fees, compliance with safe harbor provisions not required when fees imposed by trial court on its own initiative…14 attorney bad faith conduct, court has no authority to order attorney to self-report a “violation” to the Bar…14 failure to abide by discovery orders, striking of pleadings affirmed...45 Settlements, minor children, appointment of guardian ad litem required before approval of settlements totaling $50,000 or more to all parties…14 Sovereign Immunity, inappropriate directed verdict, reversal for a new trial a hollow victory where damages and fees are capped...18 Statute of Limitations, delayed discovery doctrine and other provisions related to child sexual abuse, applicable only to intentional tort claims against the perpetrators…12 Workers’ Compensation, temporary total disability, 104 week limitation held unconstitutional...38

www.FloridaJusticeAssociation.org | July/August 2016 | 69

INDEX

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Attorney Advertising Brannock & Humphries.............................................................. 49

Rehabilitation Services NeuLife Rehabilitation................................................................... 15 Settlement Services

Cohen Milstein........................................................................... 21 Craig Goldenfarb P.A.................................................................. 33 Osborne & Associates Law Firm, ............................................... 57 Searcy, Denney, Scarola, Barnhart & Shipley............................... 53

Garretson Resolution Group.......................................................... 37 NFP Structured Settlements .......................................................... 13 Synergy Settlement Services....................................inside front cover Video Production Image Resources, Inc.....................................................................35

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Applications available online or by phone: 305-740-0603 • Toll Free: 866-738-3817 • Email: money@fastfunds4you.com • www.fastfundsforyou.com 70 | July/August 2016 | www.FloridaJusticeAssociation.org

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