FJA Journal - March_April 2018

JOURNAL FLORIDA JUSTICE ASSOCIATION

Florida Justice Association • March/April ® 2018 • #601

2018 Legislative Session Wrap-Up

FJA Annual Convention & Expo June 19-23, 2018 | The Breakers Palm Beach

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MAR./APR. 2018–NO. 601 2014 March

March 2014

CONTENTS HIGHLIGHTS

ON THE COVER:

Don’t miss FJA’s 2018 Annual Convention at The Breakers in Palm Beach, June 19-23!

pg 14

16

The 2018 Legislative Session is over — a look at what passed and what didn’t

26

In a recent collateral source ruling the 5th DCA expands federal subsidies for tortfeasors

43

Impeachment — A quick reference for your trial notebook

46

Collecting judgments when there is no insurance — a guide to proceedings supplementary

52

Currying favor with the jury can be a risky strategy in closing

54

The difficult concept of “suggesting a death”

IN THIS ISSUE

Known hazardous products continue to cause needless deaths and injuries because of protective order abuse

pg 38

Understanding and securing the accommodations required when representing a deaf client

pg 58

8 12 14 16 20

26 32 36 38 42 46 52

54 58 61 62 64 68 71

President’s Message — Dale Swope Executive Director’s Message — Paul Jess Special Focus: Annual Convention & Expo Special Focus: 2018 Legislative Wrap-Up Cases and Commentaries — Kenneth D. Kranz 22 Legislative Notes Tips for Auto Practitioners — Brent Steinberg Insurance — Gregory M. Yaffa Medical Malpractice — Scott R. McMillen and Allison C. McMillen Products Liability — William C. Ourand Evidence — Matt Schultz Civil Procedure — Roy D. Wasson Closing Arguments — Philip M. Burlington, Barbara Green and Christopher V. Carlyle FJA Appellate Practice Section — Bard D. Rockenbach FJA Young Lawyers Section — Alan L. Perez CLE Calendar Member Outreach Member Spotlight EAGLE Spotlight Index

2017-2018 FJA OFFICERS, EXECUTIVE COMMITTEE AND BOARD OF DIRECTORS PRESIDENT Dale M. Swope

IMMEDIATE PAST PRESIDENT James W. Gustafson, Jr.

PRESIDENT-ELECT Lake H. (Trey) Lytal, III

EXECUTIVE DIRECTOR Paul Jess

TREASURER Leslie Mitchell Kroeger

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

SECRETARY Eric Romano

DIRECTORS 2017-2019 Hubert R. Brown Richard E. Chait Clifton C. Curry, Jr. Tiffany M. Faddis Jason F. Lamoureux Christopher N. Ligori Damian B. Mallard Todd J. Michaels Curry Pajcic Waylon Thompson Hendrik Uiterwyk Gregory M. Yaffa Mark Zamora DIRECTORS 2016-2018 Laurie Briggs David C. Dismuke Elizabeth Finizio James L. Magazine Daniel A. Mowrey H. L. Larry Perry Matthew N. Posgay Daniel Vazquez Steve Watrel Jason Whittemore

If you are a paralegal member of the FJA, your membership includes access to the paralegal list server Network with other FJA paralegal

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

PRESIDENTIAL APPOINTMENTS Nathan P. Carter AMICUS CURIAE COMMITTEE Phil Burlington

APPELLATE PRACTICE SECTION Celene Humphries

WORKERS’ COMPENSATION SECTION Richard E. Chait YOUNG LAWYERS SECTION Heather Freeman Jones Christopher Keller WOMEN’S CAUCUS Amber Hall Kerri C. Smith LOCAL TLA REPRESENTATIVES BCJA– Scott L. Henratty

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

members and ask your most pressing questions. To sign up for the

JOURNAL STAFF

Paralegal List Server, contact the FJA

EDITOR-IN-CHIEF Kenneth D. Kranz

Membership Department at (850) 521-1093.

JOURNAL COORDINATOR Jan Brown

Journal is published by Innovative Publishing for FJA. Innovative Publishing specializes in creating custom publications for associations.

Please direct inquiries to Aran Jackson at aran@innovativepublishing.com. www.innovativepublishing.com

PRESIDENT’SMESSAGE

‘THE ARC OF THE MORAL UNIVERSE IS LONG, BUT IT BENDS TOWARD JUSTICE’ — Martin Luther King, Jr.

by FJA President Dale Swope

It is strange to be putting pen to paper creating a “report” of the session that isn’t quite over and knowing this message won’t be read for weeks. I am forced to make predictions about the outcome of our initiatives, but I know that the actual outcomes will be known to all of you long before this is published.

So, think of this as a time capsule buried during the last week of session, while things should be entirely settled and predictable, except that your Legislative Director Jeff Porter is working maniacally, relentlessly devising one creative scheme after another to first build a new maze, and then plot a path get us through it to a golden egg at the end. I am thinking that until the final bell actually rings he will continue to refuse to lose, and I don’t want to jinx that. The view, however, from one row outside the actual battle cage looks almost certain that the results will be:

Good News

It is certainly easy to become infuriated at the three Senate Democrats who all voted against mandatory auto liability insurance in a seven-person committee (especially the ones who promised they would vote for it), or to wonder why the Senate leadership we have supported so generously would constitute such a committee and then route our No. 1 priority through it. And of course, we all collectively threw our hands up in disbelief that the Senate sponsor for the human trafficking bill would inexplicably TP (temporarily postpone) her bill in the last committee of reference, dooming its chance of passage, “when nobody had ever voted against it, testified against it, or even ‘waived [testifying on the bill] in opposition’” in earlier committees. [Ed.: An opponent who has signed up to testify on a bill will often waive the opportunity to speak if they feel the votes are certain.]

But the truth is, we always knew that these massive pieces of legislation would be successful only if they worked their way onto the chessboard for the last-minute, final-week, session-is-closing, budget-is-finished round of political trades. That time is now, and while we are exactly where we should be for this to occur, it almost certainly is not going to happen.

1. Workers’ compensation lost none of the gains made in the courts.

In fact, for the first time in memory, the legislature increased benefits for some workers, by lowering the requirements for first responders to qualify for PTSD benefits. Our workers’ compensation section, led by Richard “the Lionheart” Chait, deserves mammoth credit for this.

2. Nothing bad happened. At all.

Why It is Honestly OK

Bad News

The horror of this tragedy was felt by every human with warm blood in their veins, but the impact quickly focused on, and overwhelmed Tallahassee. Almost before the memorial services for their classmates were finished, the Marjory Stoneman Douglas Eagles made their way

We will not be passing mandatory BI or creating civil remedies against human trafficking facilitators this year.

8 | March/April 2018 | www.FloridaJusticeAssociation.org

It’s OK, because on February 14 of this year, as our session raced into the clubhouse turn with our priorities all on track for success, one deeply deranged young man strode into an undefended high school with a ubiquitous AR-15 and a clutch of high-capacity magazines.

Within minutes, he murdered a football coach, an athletic director, a geography teacher and 14 terrified, innocent and defenseless teenagers.

here to demand action, to insist that changes be made immediately to make our schools safe from mass shootings, and more broadly to address the national epidemic of gun violence.

Their effect on the frustratingly predictable legislative process is extremely hard to put into words.

The office of FJA president has dusty windows onto Monroe Street, and the view is normally dull. It’s mostly just political hacks in gray suits and colorful socks plodding up the hill to power carrying talking points, draft amendments, and tentative vote counts. Soon, they plod back down again hopeful that their schmoozing garnered a slightly larger slice of their organization’s agenda.

But within a week after the killings, that sidewalk came alive, packed with students, teachers, and old radicals who just knew that something was happening here. They came from FSU, FAMU, TCC, UF, and high schools all over the state. They were filled with hope, and anger, and love, and youth, and energy. They were holding televised rallies with their Sen. Gary Farmer (yes, our Gary Farmer) and sleeping on floors. They. Were. Amazing!

They were disrupting legislative committee meetings by streaming in 50 at a time and asking to speak. When they were told they couldn’t, they did anyway, reminding our elected officials that the elected work for the people, not the other way around, and that every one of them was vulnerable to being expelled by their bosses.

An exceptionally focused 17-year-old girl named Delaney Tarr grabbed a mic. Tarr has said: “I refuse to feel hopeless. Our childhoods may have been stolen from us but there are so many lives that can still be protected, and saved. Just because this has happened to many before us does not mean it must continue to happen to those after ...

We are coming after every single one of you and demanding that you take action, and demanding that you make a change.”

And honestly, these young people speaking their minds, forcing the unavoidable acknowledgement that our elected governmental leaders MUST DO SOMETHING to protect our kids, seems to have brought out the best of Tallahassee.

Tallahassee is a place where men and women of high self-esteem come mostly to fight over who should get allocations of the state’s money and power, and to settle food fights between the special interest groups that fund their political aspirations. This session was much different from that.

The emotions were high on both sides. One side firmly believed the answers lay not with encroaching on the liberties of lawful people who deserve unrestricted rights to the freedom to own and bear firearms of all types, but in doing more aggressive monitoring of the mental health of suspicious actors and in deterring violence by building a greater force in defense. The other side found it ludicrous that we should all have to give up our privacy and liberty to mental health monitoring just to satisfy

www.FloridaJusticeAssociation.org | March/April 2018 | 9

PRESIDENT’SMESSAGE the irrational belief that having cold, steel killing devices in our schools and on our persons could seriously stop evil armed with an assault rifle.

As strongly as the beliefs were held, they all knew that they would have to find some path to compromise and work with each other or else nothing at all would get done. And, to their credit, they worked 15-hour days, and screamed and cried, and in the end found enough common ground to eke out a reasonable bill that most people did not like, but was better than nothing.

This debate immediately consumed all the bandwidth available in the entire capital. We met with lawmakers in their offices as we always did, but this year there were tears rimming the eyes of the legislators and their career assistants. No matter how much passion we had for changing insurance laws when we entered their office, it honestly seemed inadequate to hold the attention of the chamber.

The nursing home deaths that occurred during committee weeks and that became the entire focus of the buildup to session took a back seat. The autonomous vehicle deregulation bills that major auto manufacturers have been clamoring for since last year slowly faded from attention. Even the salacious scandals of sexual harassment and marital infidelity that prompted resignations of really powerful people were all but forgotten when the issue of saving our children took over.

I promise you that we did our best, and Jeff’s legislative team truly has been a pleasure to watch. They are as committed to their profession as you are

to yours, and, honestly, Assistant Legislative Director Lynn McCartney in particular might actually be the most talented and competent person I have ever met.

But in the end, we came up slightly short. I will reflect on this more and think about whether it was ever possible to have accomplished such a massive undertaking as MBI, which is easily the largest legislative thing the FJA/AFTL has ever attempted. It may have been a fool’s errand to try to effect change alone against every insurance company, the hospitals and all the peripheral people who make their livings off the outdated and rotting system we call PIP, in a legislative structure carefully designed to preserve the status quo. I honestly am not sure yet.

For now, though, I again want to thank all of you whom I called on so frequently and so heavily for backup and support. Nobody ever failed to answer the call, which is amazing.

When I was young, there was a baseball announcer named Dizzy Dean who butchered the English language, but the imagery was crystal clear.

I will paraphrase him to say that MBI and human trafficking were swung at and missed, hard.

I will pout later, but for now I hope to get back to work on our membership explosion and fundraising reforms, to hopefully get that all done before my time is up.

Thank you again for letting me be your president.

EXECUTIVEDIRECTOR’SMESSAGE

Fully Engaging the Power of Research and Education for FJA Members: Do You Know the Florida Justice Association Research and Education Foundation?

by Paul Jess, Executive Director

When I became your executive director, increasing membership and modernizing our technological capabilities and advocacy processes stood at the top my priority list. That includes enhancing our research capabilities to complement our advocacy mission.

Yes, we are planning major improvements for the Florida Justice Association Research and Education Foundation, (REF) our 501(c)(3) charitable entity. Our vision is one of having a robust Foundation with an ambitious agenda to expand, create and fund initiatives that serve your diverse needs as FJA members across our state.

A stronger Foundation is a badly needed tool that we need to have available in our kit to better compete on the policy-shaping playing field.

The FJA REF bolsters the work of the FJA by using non-FJA charitable funds to support worthwhile projects and directed research.

Since it was first established and organized in 1992, the FJA REF has worked constantly to enhance and foster an understanding of the justice system and each Floridian’s role in the system as an advocate for justice and fairness. Most notably, while providing contributions to other outstanding organizations, the Foundation has chiefly provided needed funding to promote our law school outreach activities through the mock trial competition.

There is so much more that the FJA REF can do for you if we have the necessary amount of support.

Many associations have separate foundations that hold issue-based conferences and regularly produce reports and studies — especially 12 | March/April 2018 | www.FloridaJusticeAssociation.org

when the group is deep in a policy debate, just like we regularly find ourselves. We envision a fully engaged Florida Justice Association Research and Education Foundation that will produce studies and white papers to effectively communicate with FJA’s members, target audiences and other key influencers across the state and nationally in the legal community.

For example, the Foundation will commission independent studies on topics relevant to safeguard our civil justice system and protect Floridians’ access to the courts. These include: • Using polling and focus groups to determine messaging for Constitutional amendment campaigns, judicial merit retention campaigns and other notable priority initiatives; • Litigating in the public interest; and • Conducting comprehensive research to support key legislative positions, such as actuarial studies, trend analysis, and comparative analysis to counter misleading information distributed by opponents and support responsible changes in insurance law.

Over the years, I can think of several legislative issues where the cover provided by a well-timed academically sound report or study could have made a difference for our members as lawmakers decided how to vote.

Our Foundation could provide FJA with a difference-making tactical tool that would allow us to: • Make news with reporter-ready, well-researched data delivered from credible messengers; • Bring critical information to light in an easy-to-understand format; and • Change the arc of a critical policy debate.

In the coming months, we will launch a membership-wide endowment campaign to support the FJA REF agenda. Our FJA REF Endowment Fund already has more than $500,000 in investments, but that is just the beginning. FJA will challenge our members to play a larger role in the development of our Foundation’s advocacy, research and educational agenda.

With your help, FJA will energize our advocacy activity with additional research from credible scholars. This valuable information will supercharge legislative debates with information to refute misleading stories coming from opponents. With the best available education and information program working on our side, we will help you succeed in your professional practice.

We are developing a focused strategy to provide the financial resources necessary to implement vital long-term programs dedicated to our common goal of protecting and promoting the civil justice attorney profession well into the future.

We need your help to make this a success.

FJA will take a creative approach to developing a significant resource base to continue to provide quality advocacy, research and information opportunities that benefit both you as members of the profession, and the clients you serve.

When we fully realize our vision of a complete and properly funded Florida Justice Association Research and Education Foundation, we could pay for many current FJA expenses. This would provide our Board of Directors with the flexibility necessary to put more of the FJA and FJPAC budgets to work on legislative and political activities.

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An attorney may provide a client with information about companies that offer non- recourse advance funding if it is in the client’s interest and done in compliance with Florida Bar Ethics Opinion 00-3. The individual lawyer is responsible for ensuring that his or her conduct is in compliance with the Rules Regulating The Florida Bar and comports with Florida Ethics Opinion 00-03.

The Florida Justice Association recommends that attorneys who do provide names of non- recourse advance funding companies to clients should provide only names of companies that are in conformity with the guidelines contained in the agreement between the New York Attorney General and certain companies dated Feb. 17, 2005. The Florida Justice Association makes no determination or representation as to whether any particular non-recourse advance funding company is in conformity with Florida Bar rules or opinions, or any other guidelines.

Applications available online or by phone: 954-927-4376 • Toll Free: 866-738-3817 • Email: money@fastfunds4you.com • www.fastfundsfor you.com www.FloridaJusticeAssociation.org | March/April 2018 | 13

SPECIALFOCUS: ANNUALCONVENTION&EXPO

FJA Annual Convention

and Expo

When you attend an event like the Annual Convention, you get in return unique learning and career building opportunities that you can’t get from a podcast or webinar. The Annual Convention gives you access to education and networking opportunities against the backdrop of The Breakers Palm Beach. Invest in yourself!

Schedule of Events Tuesday, June 19, 2018

9:00 am-5:00 pm Women’s Caucus Section Retreat Make plans to join the FJA Women’s Caucus Section for education and lots of fun! This year’s speaker is sure to get you motivated in your practice and energized for the week ahead. Lunch is included. A reception will follow.

Wednesday, June 20, 2018 7:30 am-5:30 pm Convention Exhibit Hall & Registration Open With 50 vendors in the exhibit hall, you will find companies you already do business with, plus new companies offering services to check out!

14 | March/April 2018 | www.FloridaJusticeAssociation.org

8:30 am-5:15 pm Young Lawyer Seminar Planned by Young Lawyers, this seminar is a must-attend for any attorney who wants to take their career to the next level.

8:45 am-5:30 pm Advanced Trial Skills Seminar: Perfecting Your Competitive Edge Every FJA attorney needs a brush-up on their trial skills and this seminar does just

that plus more. Our Advanced Trial Skills Seminar also gives you a glimpse into how to handle certain types of cases as well.

Noon-1:15 pm Trial Lawyer Associations Luncheon This luncheon is available for local TLA executive directors and a representative from each TLA. 1:15 pm-1:45 pm General Membership Meeting A slate of nominees will be presented to the membership for consideration for the open FJA Officer Positions, Board of Director positions and FJ PAC Board of Trustees. Nominations will also be accepted from the floor.

5:30 pm-7:00 pm Meet the Candidates Reception Network and meet candidates running for FJA Board of Directors’ seats.

Thursday, June 21, 2018 7:30 am-3:20 pm Convention Exhibit Hall & Registration Open

8:30 am-3:20 pm Advanced Trial Skills Seminar The second day of this seminar promises to be just as energizing as the first day.

9:30 am-10:30 am Women’s Caucus Section Meeting & Elections FJA Women’s Caucus Section members should attend the annual meeting and vote for new leaders.

10:30 am-11:00 am Workers’ Comp Section Meeting & Elections FJA Workers’ Comp attorneys should attend the annual meeting and vote for new leaders.

dessert with your FJA colleagues and celebrate Dale’s year of service and leadership. Those who attend are in for a treat with a special screening of the 2018 President’s video.

11:00 am-11:30 am Appellate Practice Section Meeting & Elections FJA Appellate attorneys should attend the annual meeting and vote for new leaders.

7:30 am-Noon Convention Exhibit Hall Open

Friday, June 22, 2018

7:30 am-5:00 pm Convention Registration Open

Noon-1:45 pm FJA Justice Luncheon

8:15 am-12:15 pm Transportation Law Seminar

3:30 pm-5:00 pm FJA Elections Come and vote for future leaders for the FJA Board of Directors. Your membership should be current in order to vote.

8:45 am-5:00 pm Civil Litigation for Paralegals & Legal Assistants Seminar If you are a paralegal or legal assistant of a personal injury firm, we encourage you to attend the seminar and bring other paralegals from your firm. Planned by an FJA Paralegal Member, topics are about personal injury hot buttons that you need answers for to effectively assist the firm’s clients. NALA CLE Credit is approved for the seminar.

5:00 pm-6:00 pm Young Lawyers Section Elections If you are a Young Lawyer with the FJA, come and vote for the future leaders of the FJA Young Lawyers Section.

6:00 pm-7:30 pm EAGLE/FJ PAC Welcome Reception All members are welcome! Network with colleagues and recognize the extraordinary commitment to our mission demonstrated by those who give beyond regular membership dues to ensure FJA’s strong position in the legislative and political process.

7:30 pm-10:30 pm FJA Annual Dinner & Dessert Reception President Dale Swope had a big year – it’s time to show our thanks! Enjoy dinner and

12:30 pm-2:30 pm Presidential Luncheon Make way for a new year of leaders. This is the event where the FJA swears in our incoming President Trey Lytal. We also take this time to recognize outstanding leaders within the FJA and their commitment to our mission.

Saturday, June 23, 2018

8:00 am-Noon FJA Board of Directors Meeting All FJA Members are welcome to attend the Board of Directors Meeting.

Convention Location & Accommodations: The Breakers Palm Beach One South County Road Palm Beach, FL 33480 FJA Group Room Rate: $245; Available until May 18, 2018 or until the room block is full. Reservations should be made online through the following link:

http://aws.passkey.com/go/FLJUS18 Or you may call The Breakers directly at (561) 655-6611.

Register for the Annual Convention in two ways: Call: (850) 521-1029 FJA Website: www.floridajusticeassociation.org

www.FloridaJusticeAssociation.org | March/April 2018 | 15

SPECIALFOCUS: 2018LEGISLATIVEWRAP-UP

2018 Legislative Wrap-Up

by Kenneth D. Kranz

2018 Session Overviews

This year’s Session was unusual. One result of the senseless and tragic mass shooting at Marjory Stoneman Douglas High School Session was a disruption of the usual Session end-games as legislators turned their attention to focus on school safety. (See Dale Swope’s President’s Message in this issue for a personal description of how that tragedy affected everyone.) Although the level of bill filing activity this year was up quite a bit from last year with a total of 3,192 bills filed (989 Senate bills and 2,203 House bills), the most of any session in the past 17 years, only 200 eventually passed both chambers for a passage rate of 6.2 percent. This is the lowest percentage of filed bills passing both chambers in that same time frame (the passage rates in 2015, 2016 and 2017, respectively, were 13.2 percent, 15.4 percent and 8.2 percent). Through it all, the FJA was faced with the usual annual array of legislative attacks on the civil justice system, and, once again, these attacks were able to be stopped or neutralized.

Claim Bills

Claim bill activity was down this year, but last year’s generosity was due at least in part to clearing out more of the backlog 16 | March/April 2018 | www.FloridaJusticeAssociation.org

resulting from the logjam created in 2013-2014, when no claim bills at all were passed. This year bills were filed against the state on behalf of 11 claimants and against local governments on behalf of 12 claimants. The legislature passed eight bills totaling approximately $15 million — four granting claims totaling $9.1 million against the state and four granting claims totaling $5.9 million against local governmental entities. The two largest claims were $5.08 million against the Florida Department of Children and Families and $5 million against the City of Tampa.

For More Information

Detailed summaries of enacted bills can be found in the post-Session 2018 Bill Summaries prepared by the staff of the Florida Senate. That complete document, which contains summaries of all the bills that passed this year, can be found at www.flsenate.gov/committees/billsummaries/2018/.

Copies of all versions of bills, amendments, legislative staff analyses, and complete legislative history including archived video or audio recordings of floor proceedings and many committee meetings can be found at www.flsenate.gov and www.myfloridahouse.gov.

Legislation

The enacted bills that are most likely to be of interest to practitioners are summarized below by subject area (within categories, bills appear in numerical sequence); failed bills of interest are also listed.

NOTE: At the time this document was prepared, most of the final post-Session summaries were not yet available, so what appear below are the short versions used in the legislative records that may not accurately reflect the content of bills as they were finally passed by both chambers. Practitioners are cautioned to use this as a guide and refer to final legislative summaries and the text of enrolled versions of bills for the definitive word as to their content. Also note that virtually none of these bills had been presented to the Governor for final action, so they are all still subject to veto. Effective dates specified as “Upon becoming a law” take effect upon signature (or passage of time if not vetoed).

Auto/PIP

Notable issues that failed to pass — Proactive: Mandatory Bodily Injury Insurance Coverage and PIP Repeal (SB 150, HB 19); Autonomous Vehicles (SB712/HB 353). Defensive: Assignment of Benefits for Windshield Coverage (SB 396/HB 811); Named Driver Exclusion (SB 518/HB 329).

HB 215 (Payne) Motor Vehicles — Authorizing a mobile carrier to be operated on sidewalks and crosswalks within a county or municipality when such use is permissible under federal law; requiring safety belt or, if applicable, child restraint usage by an operator or passenger of an autocycle; providing that a mobile carrier is not required to satisfy specified registration and insurance requirements; authorizing a person to operate an autocycle without a motorcycle endorsement, etc. Effective Date: July 1, 2018

Court Sytem, Procedure, Damages and Evidence

Notable issues that failed to pass — Proactive: Tobacco Settlement Agreement Bond Repeal (SB 124/HB 6017). Defensive: Creation of Court of Claims (SB 812, SB 814); JNC Appointments (SB 1030/HB 753).

HB 623 (Byrd) Out-of-Country Foreign Money Judgments — Provides additional circumstances in which an out-of-country foreign judgment need not be recognized. Effective Date: Upon becoming a law HB 875 (Leek) Limitations of Actions Other Than for the Recovery of Real Property — Authorizes commencement, within specified timeframe, of certain claims after pleading to which such claims relate; provides applicability. Effective Date: July 1, 2018 HB 1361 (Clemons) Clerks of Court — Repeals provisions relating to disposition of certain unclaimed money paid to court; revises time period for certain persons to file claims for unclaimed surplus funds; requires clerk to report certain unclaimed property as surplus; specifies procedures for clerk to use in handling surpluses; specifies entity entitled to surplus; repeals provisions relating to qualifications and appointment of surplus trustee in foreclosure actions; exempts certain funds remaining after judicial sale from becoming distributable and subject to certain reporting requirements; requires driver improvement course providers to transmit

completion certifications and numbers through Florida Courts E-Filing Portal; revises service charges that clerk may receive and deduct from surplus. Effective Date: July 1, 2019

General Tort, Products Liability and Consumer

Notable issues that failed to pass — Proactive: Cause of Action for Victims of Human Trafficking (SB 1044/HB 167); Sovereign Immunity Excess Judgments (SB 1812/HB 1131). Defensive: Construction Defect Claims (SB 680/HB 759).

SB 4 (Galvano) – Higher Education — Named the “Florida Excellence in Higher Education Act of 2018,” this extensive bill includes among its provisions the creation of a free speech cause of action against a public institution of higher education by a person whose “expressive rights are violated” due to an action prohibited under the act. Effective Date: March 11, 2018, except as otherwise provided HB 21 (Boyd) – Controlled Substances — Requires practitioners to complete specified board-approved continuing education course to prescribe controlled substances; defines “acute pain”; provides for adoption of standards of practice for treatment of acute pain; limits prescribing of opioids for acute pain in certain circumstances; requires pain management clinic owners to register approved exemptions with DOH; provides requirements for pharmacists and practitioners for dispensing of controlled substances to persons not known to them; conforms state controlled substances schedule to federal controlled substances schedule; revises requirements for prescription drug monitoring program. Additionally, it authorizes a prescriber or dispenser, or his or her designee, to access and review a patient’s controlled drug prescription history and immunizes such person from liability for receiving or using information from the prescription drug monitoring program. Effective Date: July 1, 2018 SB 740 (Stargel) Department of Agriculture and Consumer Services — Specifying the methodology for the assessment of certain structures in horticultural production; revising permitting requirements and operating standards for water vending machines; requiring certain liquefied petroleum gas dealers to provide notice within a specified period before rendering a consumer’s liquefied petroleum gas equipment or system inoperable or discontinuing service; providing that delaying or failing to make payment for certain livestock is an unfair and deceptive act, etc. Effective Date: July 1, 2018

Insurance — General, Property & Misc.

Notable issues that failed to pass — Proactive: Assignment of Insurance Benefits (SB 256; SB 1168); Insurance Rating (SB 258); Nonjoinder of Insurers (SB 1452/HB 6075). Defensive: Assignment of Property Insurance Benefits (SB 62, HB 7015).

HB 465 (Santiago) Insurance — Providing an exception from valuation rules for stocks in subsidiaries for certain foreign insurers under certain conditions; revising requirements for rules adopted by the Department of Financial Services and the Financial Services Commission relating to the privacy of certain consumer information; revising the definition of the term “specialty insurer” to include viatical settlement providers, etc. Effective Date: Upon becoming a law www.FloridaJusticeAssociation.org | March/April 2018 | 17

SPECIALFOCUS: 2018LEGISLATIVEWRAP-UP

HB 483 (Yarborough) Unfair Insurance Trade Practices — Revises types, value and frequency of advertising and promotional gifts that licensed insurers or their agents may give to insureds, prospective insureds, or others; authorizes such insurers or agents to make certain charitable donations on behalf of insureds or prospective insureds; prohibits title insurance agents, agencies, and insurers from giving insureds, prospective insureds, or others merchandise in excess of specified value; authorizes certain licensed insurers and agents to give specified complimentary services or discounted rates on specified services. Effective Date: July 1, 2018 HB 533 (Hager) Unfair Insurance Trade Practices — Authorizing insurers to refuse to insure or refuse to continue to insure an applicant or insured for failing to purchase certain noninsurance motor vehicle services, etc. Effective Date: July 1, 2018 SB 660 (Brandes) Florida Insurance Code Exemption for Nonprofit Religious Organizations — Revising criteria under which a nonprofit religious organization that facilitates the sharing of contributions among its participants for financial, physical, or medical needs is exempt from requirements of the code, etc.

Effective Date: July 1, 2018 HB 1011 (Cruz) Homeowners’ Insurance Policy Disclosures — Provides and revises homeowners’ flood damage insurance policy disclosure requirements. Effective Date: January 1, 2019

requiring the department to review adverse incident reports and determine if conduct occurred that is subject to disciplinary action, etc. Effective Date: Upon becoming a law

HB 1073 (Hager) Department of Financial Services — Revises requirements for electronic originals and copying of certain records media; revises certain bureau names and creates new bureaus; revises service options for child transition plans; creates Florida Open Financial Statement System and authorizes CFO to choose contractors to build system; revises requirements for licensure or appointment of managing general agents under the Florida Insurance Code; revises license application process for managing general agents; revises terms of office for Florida Fire Safety Board; deletes provision for staffing and funding formula of Florida State Fire College. Effective Date: July 1, 2018

HB 735 (Harrell) Mammography — Requires facilities performing mammography to include certain information in summary of mammography report provided to each patient; provides applicability; provides for future repeal. Effective Date: July 1, 2018

HB 1127 (Lee, Jr.) Public Records and Meetings/Citizens Property Insurance Corporation — Creates exemption from public records and meetings requirements for certain data and information held by Citizens Property Insurance Corporation relating to information technology security programs; authorizes certain entities or agencies to access such records; provides retroactive application; provides for future legislative review and repeal; provides statements of public necessity. Effective Date: Upon becoming a law

Medical Malpractice and Health Care-Related

SB 510 (Young) Reporting of Adverse Incidents in Planned Out-of-Hospital Births — Defining the term “adverse incident”; requiring licensed physicians, certified nurse midwives, and licensed midwives to report an adverse incident and a medical summary of events to the Department of Health within a specified timeframe; 18 | March/April 2018 | www.FloridaJusticeAssociation.org

Nursing Home, Elderly & Children

Notable issues that failed to pass — Proactive: Nursing Home Liability (SB 1408); Long Term Care Facility Responsibility (HB 1369). Defensive: Elder Abuse Fatality Review Teams (SB 422/HB 259; immunity provision in HB).

HB 1059 (Burton) Exploitation of a Vulnerable Adult — Creates cause of action for injunction for protection of vulnerable adult from exploitation; provides requirements for clerk of circuit court; provides penalty for willful violation. Effective Date: July 1, 2018

Workers’ Compensation

Notable issues that failed to pass — Proactive: Workers’ Compensation Insurance Ratemaking (SB 1634/HB 1381). Defensive: Reimbursement Allowances, Timeframes, Attorney’s Fees, etc. (HB 7009).

SB 376 (Book) — Workers’ Compensation Benefits for First Responders: Providing that, under certain circumstances, post-traumatic stress disorder suffered by a first responder is an occupational disease compensable by workers’ compensation benefits; specifying that benefits do not require a physical injury and are not subject to certain apportionment or limitations, etc. Effective Date: October 1, 2018

CASES&COMMENTARIES

In Brief

by Kenneth D. Kranz, Editor-in-Chief

The Supreme Court disbarred an attorney who shortly after admission to the Bar began erroneously advising his clients and providing them with legally meaningless “Official Legal Certifications” purportedly authorizing them to grow and use marijuana, based on a determination of medical necessity made by a physician not licensed to practice medicine in Florida. The Fla. Bar v. Christensen, So.3d , 43 FLW S17 (Fla. 1-18-2018). The attorney advised his clients that based on Florida law they were protected by the affirmative defense of medical necessity, but he did not tell his clients that this affirmative defense would not apply, if at all, until after the clients were arrested, charged and prosecuted. Unfortunately, several clients who relied upon this erroneous advice were arrested and criminally prosecuted, with devastating impacts on their lives, including fines, probation, required community service, loss of professional licensure, job loss and liability for collateral damages caused to rental property in the course of a SWAT team raid. Due to his incompetence and the extremely serious harm to his clients, the Court ordered immediate disbarment: “We will not tolerate such misconduct by members of the Florida Bar.” The Supreme Court authorized several changes to the Standard Jury Instructions in Civil Cases that relate to legal causation and comparative fault. In Re: Standard Jury Instructions in Civil Cases — Report No. 17-03, So.3d , 43 FLW S58 (Fla. 2-12018). Included are amendments to instructions 401.21, 401.23, 20 | March/April 2018 | www.FloridaJusticeAssociation.org

402.13, 402.15, 402.12 and 409.12 relating to burden of proof; 412.8 relating to issues on claim and burden of proof; 412.9 relating to defense issue; 501.4 and 502.5 relating to comparative negligence, non-party fault and multiple defendants; and Section 700 — Closing Instructions, Model Instruction Nos. 1-6, and Model Verdict Forms 1 and 5(c).

An attorney who had been suspended from the practice of law twice before was disbarred for what the Court described as an escalating pattern of “disparaging conduct toward other members of the legal profession.” The Fla. Bar v. Ratiner, So.3d , 43 FLW S108 (Fla. 2-22-2018). “One can be professional and aggressive without being obnoxious.” The opinion cites findings related to several instances of misconduct toward opposing counsel and disruptive behavior in court. The referee had recommended a three-year suspension to run concurrent with the current three-year suspension imposed in 2015, but the Court preliminarily noted that this would have resulted in a six-year suspension, which would have run afoul of the three-year limit in Fla. Stds. Imposing Law. Sancs. 2.3. The Court concluded that it was left with no choice but disbarment, finding that the attorney’s “intentional and egregious misconduct continues to demonstrate an attitude that is wholly inconsistent with professional standards, and there is no indication that he is willing to follow the professional ethics of the legal profession.” All three of the disciplinary actions involved misconduct in his representation of plaintiffs against E.I. DuPont De Nemours & Co.

Dismissal of a personal injury action for fraud upon the court was proper where the plaintiff had testified in deposition that she had a permanent limp, needed a cane to get around, could not carry large boxes without a cane, and needed a handrail to get up and down steps, but surveillance video of her activities while she was moving into a townhouse clearly contradicted all of these representations. Willie-Koonce v. Miami Sunshine Transfer & Tours, Corp., So.3d , 43 FLW D6 (Fla. 3rd DCA 12-202017). “Although the result in this case may seem rough justice, the courts must deal firmly and publicly with a litigant’s fraud on the very judicial system the litigant asks to render justice.”

A trial court’s order awarding attorney’s fees for misconduct to be paid by an attorney was reversed and remanded where the court failed to make an express finding of bad faith conduct and failed to make any detailed factual findings describing the specific conduct that resulted in the unnecessary incurrence of fees. Ochalek v Rivera, So.3d , 43 FLW D21 (Fla. 4th DCA 12-20-2017). The order below merely recited that the attorney, who had previously withdrawn from the case but allegedly continued to interfere in the case, must pay the amount to the party’s new counsel because the attorneys’ fees were “reasonable and necessary.”

The First DCA agrees with the Second and Fourth Districts that compliance with the service requirements of Fla.R.Civ.P. 2.516 is not required when serving a proposal for settlement. Oldcastle Southern Group, Inc. v. Railworks Track Systems, Inc., So.3d , 43 FLW D22 (Fla. 1st DCA 12-21-2017). The proposal was challenged for failure to include a subject line on the email beginning with “SERVICE OF COURT DOCUMENT” and failure to include within the body of the email the case number, the court where the case was pending, the name of the party, and the title of the document served, all of which would have been required if the document had been subject to the rule. The court certified conflict with Wheaton v. Wheaton, 217 So.3d 125 (Fla. 3rd DCA 2017), rev. granted, 2017 WL 4785810 (Fla. 10-24-17).

Evidence presented to support a claim for future loss of earning capacity that revolved around the plaintiff’s fear of losing her job rather than any diminished capacity to continue her employment was speculative and could not serve as a proper basis for an award of those damages; plaintiff’s attorney cautioned about gambit used to attack defense expert. Vickers v.

Thomas, So.3d , 43 FLW D28 (Fla. 5th DCA 12-22-2017).

Although the court reversed the award of future loss of earning capacity, it found the evidence supported the award of future medical expenses, which was within the range of the estimated cost of plaintiff’s palliative care alone, even if surgery was not required in the future. The court chastised the plaintiff’s attorney, who in closing argument attacked the defense’s decision to call an orthopedic surgeon. The plaintiff had originally sought recovery for cervical, lumbar and shoulder injuries allegedly arising from the auto accident. Four days before trial, she withdrew her claim for the shoulder injury and successfully obtained a ruling in limine to prevent discussion of the withdrawn claim. During its case, the defense presented the testimony of an orthopedic surgeon specializing in shoulder surgery who had conducted the CME on the plaintiff.

During closing, plaintiff’s counsel made several comments related

to the surgeon’s qualification to testify about cervical and lumbar injuries and, despite the motion in limine regarding the withdrawn shoulder injury claim, attacked the defense’s decision to use him as an expert in his case based on his specialization in same.

The court found this attack to be disingenuous and improper, but under the circumstances of the case not so highly prejudicial and inflammatory as to deny the defendant a fair trial. However, it noted: “[Plaintiff’s] counsel’s closing arguments have gathered the attention of this Court and if they continue, should gather the attention of trial courts as well. We caution that the use of such improper comments, and the effect on a litigant’s right to a fair trial, will lead to a new trial in the appropriate case.”

An action by an employee of a power company against a contractor that for several years had performed services at the power plant alleging a claim sounding in premises liability on the theory that the contractor had control of the premises and was responsible for the asbestos exposure that led to plaintiff’s mesothelioma should have resulted in a directed verdict for the contractor. Bechtel Corp. v. Batchelor, So.3d , 43 FLW D40 (Fla. 3rd DCA 12-27-2017). The court found that the evidence in the case was insufficient to make a finding that the contractor controlled all or part of the power plant where the plaintiff was exposed to asbestos such that it owed the plaintiff the same duty that a landowner owes an invitee. “We are certainly sympathetic to the fact that this lack of evidence may well be due to the simple passage of over 30 years between the trial and the occurrence of the events at issue. But the lack of evidence may also be due to the fact that [the power plant operator] never permitted a third party to take control and possession of all or part of this nuclear facility.” “[A] person who petitions the government for a road improvement outside of his or her property has no legal duty to guard against the government making a decision that will create an allegedly unreasonably dangerous road condition.”

Sewell v. Racetrac Petroleum, Inc., So.3d , 43 FLW D47 (Fla. 3rd DCA 12-27-2017). The plaintiff was injured when she lost control of her car and hit a palm tree after she was allegedly cut off by an unknown vehicle that made a left-hand turn out from the defendant gas station, traversed through a cut in the median of the divided roadway, and abruptly joined the lane of traffic in which the plaintiff was traveling. In suing the operator of the gas station, the plaintiff’s main theory was that in its application to the county for a cut in the median to facilitate egress from the property, which at the time the defendant was planning to purchase and develop as a gas station, the defendant knew or should have known that creating the opening in the median would pose an undue risk of harm to the motoring public. The plaintiff also alleged that the defendant negligently painted driveway markings on its own property that encourage customers to make these left turns when it knew or should have known that such turns presented an unreasonable danger. The Third DCA affirmed the trial court’s dismissal of the former claim, but reversed dismissal of the latter, finding that theory to be viable under existing case law. “An owner can be liable for actions it takes or fails to take on its own property that cause vehicles to exit in a manner that the owner knew or should have known creates an unreasonable danger to vehicles on the adjacent roadway.” www.FloridaJusticeAssociation.org | March/April 2018 | 21

CASES&COMMENTARIES

In a suit against a cruise line for an injury that occurred at the Port of Miami terminal while the plaintiff was riding on an escalator up to the ship’s gangway to embark on her cruise, federal admiralty jurisdiction attached so venue was properly in federal court pursuant to the venue selection clause in the ticket contract. Carnival Corp. v. Garcia, So.3d , 43 FLW D87 (Fla. 3rd DCA 1-3-2018). The venue selection clause specified that all disputes arising under the contract were to be litigated in federal court unless the federal court lacked subject matter jurisdiction. The plaintiff filed suit in state court, and, in response to the defendant’s motion to dismiss, asserted that the federal court lacked subject matter jurisdiction. The trial court agreed with the plaintiff and denied dismissal. In reversing, the Third DCA held that both tests for federal admiralty jurisdiction had been met: 1) the “location” test, which is met “where it is alleged that the shipowner commits a tort before or while the ship is being unloaded, and the impact is felt on shore at a time and place not remote from the wrongful act”; and 2) the “connectivity” or “nexus” test, which examines “whether the incident had a potentially disruptive impact on maritime commerce and whether a substantial relationship exists between the activity giving rise to the incident and maritime commerce.” See also Newell v. Carnival Cruise Lines, 180 So.3d 178 (Fla. 3rd DCA 2015), in which the Third DCA determined that federal admiralty jurisdiction existed because both tests were met in a case where a cruise ship passenger alleged she was injured after exiting the ship and while walking in a restricted area of the ship terminal on her way to customs. In the present case, the court stated that it found no difference between embarking and disembarking for purposes of federal admiralty jurisdiction.

The limited waiver of sovereign immunity set forth for common law tort claims under §768.28, Fla. Stat., does not apply to claims arising under the Florida Unfair and Deceptive Trade Practices Act. Sun’N Lake of Sebring Improvement District v.

Ayala, So.3d , 43 FLW D103 (Fla. 2nd DCA 1-5-2018).

A law firm that withdrew as counsel for a litigant but did not file a notice of its charging lien prior to the subsequent voluntary dismissal of the case with prejudice pursuant to a settlement stipulation lost its right to $300,000 in unpaid fees.

Greenberg Traurig, P.A. v. Starling, So.3d , 43 FLW D107 (Fla. 2nd DCA 1-5-2018). “To perfect a charging lien, the attorney must ‘either file a notice of lien or otherwise pursue the lien in the original action’ before the case is dismissed.” Here, after withdrawing, the firm sent its former client three letters advising that the firm “reserved its right to file and enforce a notice of charging lien.” However, the three letters, which reflected action the firm might take in the future, were never filed in the original action before the dismissal and, thus, the court found, did not constitute pursuing the lien in the original action. Accordingly, there was not a valid lien to begin with, and, in any event, after dismissal of the original case the trial court lost its jurisdiction to consider one filed subsequently.

In an auto case where the jury awarded over half a million dollars for past medical expenses resulting from serious injuries that required multiple surgeries and a total of 18 weeks of hospitalization, leaving the plaintiff with a 25 percent permanent impairment, its award of $1,000 for past non-economic damages was clearly inadequate as a matter of law and the trial court erred in denying plaintiff’s motion for additur or a new trial. Gustavsson v. Holder, So.3d , 43 FLW D122 (Fla. 5th DCA 1-5-2018). The trial court directed a verdict on permanency and submitted the case to the jury. The jury initially awarded only the medical damages, amounting to nearly the exact total of the claimed medical expenses, but nothing for pain and suffering, physical impairment, mental anguish, inconvenience, aggravation of disease or physical defect, or loss of capacity for the enjoyment of life. The judge sent the jury back with a direction that because of the court’s finding of permanent injury and the award of past medical expenses, there must be an accompanying award for pain and suffering. Eleven minutes later the jury returned the same

LEGISLATIVE NOTES It’s over! The 2018 Regular Session ended almost on time on Sunday, March 11, after requiring a short extension for them to finish the budget. Barring a Special Session, the legislature will not be back in Tallahassee until the Organizational Session, which is held two weeks after the November General Election.

As you probably know, every House seat and half the Senate (even-numbered districts) will be up for election this year along with the governor and cabinet.

The 2019 Regular Session will be back in its regular March time slot, but it is possible that the 2020 Session will be held early again as it was this year. Art. III, Sec. 3(b), Fla. Const., requires 22 | March/April 2018 | www.FloridaJusticeAssociation.org

the 60-day annual sessions in odd-numbered years to start in March, but it gives the legislature the discretion to specify a different starting date for even-numbered years.

For a post-Session wrap-up of the 2018 legislation that could impact your practice, see the Special Focus section of this issue.

Calendar August 28 ��������������������������������������������������������� Primary Election November 6 �������������������������������������������������������General Election November 20 ������������������������������������������� Organizational Session March 5-May 3 �������������������������������������������2019 Regular Session

three times that amount. The court remanded for remittitur or a new trial limited to a determination of the amount of future medical expenses.

The passage of 21 months between a law enforcement officer’s physical examination and his hire date is too lengthy a period of time to be considered as “upon entering service” for purposes of qualifying for the §112.18(1), Fla. Stat., presumption of occupational causation of heart disease and hypertension. City of Homestead v. Foust, So.3d , 43 FLW D243 (Fla. 1st DCA 1-26-2018).

verdict for medical expenses and added $1,000 for past non-economic damages and $1,000 for future non-economic damages.

The plaintiff moved for additur or a new trial, which was denied.

The Fifth DCA found this to be error as to the past non-economic damages; however, not with respect to the future damages: “We do not disturb the jury’s verdict or the trial court’s ruling regarding future economic or non-economic damages because future damages are, by nature, less certain than past damages. … In this case, the jury made no award for future medical expenses, and [plaintiff] testified the pain had improved and there were periods in between surgeries where he indicated no pain.” The case was remanded for an additur or a new trial on past non-economic damages only.

The Supreme Court’s decision in Debrincat v. Fisher, 217 So.3d 68 (Fla. 2017), stating that the litigation privilege does not bar the filing of a malicious prosecution claim based on adding, and later dropping, a party defendant to a civil suit, is not limited to only those situations where a party is added to the litigation. Inlet Beach Capital Investments, LLC v. The Enclave at Inlet Beach Owners Assoc., Inc., So.3d , 43 FLW D159 (Fla. 1st DCA 1-17-2018). The court held that the reasoning also applied to the present consolidated cases where the claims of malicious prosecution and conspiracy to commit malicious prosecution were based on allegedly baseless foreclosure and declaratory actions originally brought by defendants against the plaintiffs.

Where the plaintiff’s treating physician testified that the plaintiff may need different modalities of treatment in the future that might include certain injections, which might possibly be of benefit along with other treatments that might be indicated in the future, the court found that, while there was evidence that the plaintiff would need future care, there was no competent substantial evidence to support the amount awarded for future medical expenses. State Farm Mutual Automobile Ins. Co. v. Harmon, So.3d , 43 FLW D238 (Fla. 5th DCA 1-26-2018).

The court noted that Florida law restricts recovery of future medical expenses to those reasonably certain to be incurred and that testimony that certain treatments might be needed in the future is insufficient. Here, the physician testified that his past medical expenses “could define the costs of those possible treatments that may occur in the future,” but the jury awarded approximately

In an administrative hearing challenging the amount of a Medicaid lien on the proceeds of a third-party wrongful death suit, the ALJ erred in failing to give full force and effect to AHCA’s agreement in the Joint Prehearing Stipulation that the plaintiffs collectively had the right to contest the amount payable to AHCA pursuant to the statutory formula. Delgado v. Agency for Health Care Admin., So.3d , 43 FLW D245 (Fla. 1st DCA 1-262018). The court found that, essentially, by its stipulation, AHCA waived any right it had to raise the point that the plaintiffs were not “recipients” under the statute.

The collateral source statute, §768.76, Fla. Stat., only requires evidence of a plaintiff’s receipt of benefits from a collateral source for losses sustained; “it does not require a claimant to further prove that each dollar of a collateral source was actually awarded by the jury.” Woudhuizen v. Smith, So.3d , 43 FLW D277 (Fla. 5th DCA 2-2-2018). The trial court had declined to set off Social Security disability payments to the plaintiff, finding that the defendants could not show that the collateral source payments duplicated the damages awarded by the jury. The defendants appealed, arguing that §768.76 does not require a party to present evidence matching the “period covered by the disability benefits” with the “period covered by the jury’s award of past lost wages.”

The Fifth DCA agreed. Although the plaintiff argued that the legislative purpose behind the collateral source statute was to avoid a “duplication of benefits,” the court relied on the plain language of the statute to conclude: “the Legislature chose to accomplish its purpose by requiring a trial court to ‘reduce the amount of such award by the total of all amounts which have been paid for the benefits of the claimant.’ … We have no authority to require a line by line itemization in every verdict.”

A substantial award of future economic damages was not based on competent substantial evidence that they were reasonably certain to be incurred where the supporting evidence was the plaintiff’s testimony as to the amount that she had paid for her past medical expenses and for past household goods and services subsequent to the accident that resulted in her injury. Hitchcock v. Mahaffey, So.3d , 43 FLW D282 (Fla. 2-2-2018). The case was reversed for remittitur or a new trial on these damages.

The trial court did not err in dismissing 73 Engle personal injury cases filed by plaintiffs’ counsel on behalf of deceased plaintiffs and in denying counsel’s request for leave to amend www.FloridaJusticeAssociation.org | March/April 2018 | 23

CASES&COMMENTARIES

the complaints and substitute new party plaintiffs into the actions. In Re 73 Engle-Related Cases, So.3d , 43 FLW D314 (Fla. 1st DCA 2-8-2018). “Plaintiffs’ counsel in this case had filed the lawsuits on behalf of dead persons just before the statute of limitations expired in January 2008. Most of the named plaintiffs had been dead for many years, some for only months, but none were alive when counsel filed lawsuits in their names.” The court found these were never valid claims as filed, and, because plaintiffs’ counsel had let the cases sit for eight years without proactively correcting the faulty allegations in the complaints, leaving it to the court to “flush out the truth” after the defendants sought dismissals, “it is easy to conclude that allowing plaintiffs’ counsel to amend their pleadings would be an abuse of the privilege to amend and prejudicial to defendants.”

Question certified: “When calculating the amount of the PIP benefits due an insured, does Section 627.739(2), Florida Statutes, require that the deductible be subtracted from the total amount of medical charges before applying the reimbursement limitations under Section 627.736(5)(a)1.b., or must the reimbursement limitation be applied first and the deductible subtracted from the remaining amount?” Progressive Select Ins. Co. v. Fla. Hospital Medical Center, So.3d , 43 FLW D318 (Fla. 5th DCA 2-9-2018); on motion for rehearing and motion to certify. The court concluded that the 2003 amend-

ment to the statute requires that the deductible be applied to 100 percent of the expenses and losses.

Where there was unrebutted evidence that the plaintiff had suffered a permanent, painful injury to his shoulder, neck and back, and the jury awarded him damages for past and future medical expenses but nothing for past or future noneconomic damages, the trial court erred in denying the plaintiff a limited additur or a new trial. Sukraj v. Phoeung, So.3d , 43 FLW D353a (Fla. 2nd DCA 2-14-2018). The additur or new trial was limited to damages for only the past pain and suffering for the shoulder injury as there was undisputed evidence at trial that the plaintiff had suffered pain in his shoulder. The court affirmed the denial of additur or new trial as to past noneconomic damages for the neck and shoulder injury and for future noneconomic damages because the issue of whether he had experienced pain due to these or would suffer any pain in the future had been disputed at trial.

Despite the absence of a fee hearing transcript or a statement of the facts, the Second DCA reversed an award of a contingent fee multiplier where the order awarding fees did not contain a specific finding regarding the difficulty the plaintiff might have experienced in retaining counsel to handle the case or any other specific finding regarding the relevant market which would support application of the contingent fee multiplier.

Citizens Property Ins. Corp. v. Anderson, So.3d , 43 FLW D353b (Fla. 2nd DCA 2-14-2018). Here, the defendant sought to have a statement of evidence prepared in lieu of a transcript of the fee hearing, but the parties could not agree on the substance of the statement and the trial court judge indicated that she had an insufficient memory of the witnesses’ testimony. On appeal, the court had before it only a list of the names of the witnesses who testified and the documentary evidence that was presented. “The order under review is fundamentally erroneous on its face because it fails to contain a specific finding regarding whether the relevant market required the application of the contingent fee multiplier.

And under the unique facts of this case, we are unable to determine what, if any, evidence was presented on that issue or even whether the trial court considered it.” The court went on to reassure that: “[W]e are not radically shifting the law or extending the holding of Rowe and Quanstrom to require written findings in all instances. We acknowledge that a trial court can make oral findings in support of a fee award. … [W]e do not mean to suggest that a reversal would be required in any case where a trial court fails to include a written finding on a factor in awarding attorneys’ fees. This is simply a case where the lack of a transcript does not preclude reversal because the order is insufficient on its face.”

KEN KRANZ, FJA JOURNAL EDITOR-IN-CHIEF

is editor-in-chief and columnist for the FJA’s bimonthly Journal. He has 40 years of legislative experience and formerly served as the senior legislative counsel with various responsibilities related to the FJA legislative activities.

24 | March/April 2018 | www.FloridaJusticeAssociation.org

www.FloridaJusticeAssociation.org | March/April 2018 | 25

TIPSFORAUTOPRACTITIONERS

FIFTH DCA EXPANDS FEDERAL SUBSIDIES FOR TORTFEASORS

by Brent Steinberg

Back in the September/October 2017 edition of the Journal, we discussed a Fifth DCA case, Rasinski v. McCoy, 227 So.3d 201 (Fla. 5th DCA 2017), which held that tortfeasors are entitled to a setoff for the amount of any lien that is “released” and “waived” by the healthcare provider. That decision conflicted with the court’s own prior precedent, along with cases from the First and Fourth DCAs.

The defendant argued that §768.76 required the court to offset the full amount of the SSDI benefits, meaning that the lost wage award should be reduced to zero. The plaintiff countered that there should be no offset because everyone would have to speculate about whether the $50,000 of lost wages awarded actually duplicated the benefits paid out by SSDI.

Now, the Fifth DCA has again construed the collateral source statute, Fla. Stat. §768.76, in a manner that greatly expands tortfeasors’ rights to a setoff, to the detriment of accident victims.

The trial court agreed with the plaintiff, and even opined that the $50,000 was likely awarded as compensation for the first year following the injury — a time when plaintiff did not receive any SSDI

In Woudhuizen v. Smith, So.3d , 43 FLW D277, 2018 WL 665139 (Fla. 5th DCA 2-2-18), the Fifth DCA held that lost wages must be set off by the full amount of the plaintiff’s Social Security Disability Insurance (SSDI) payments, regardless of whether there was an actual “duplication” between the benefits received and the amount awarded by the jury.

The jury verdict totaled $125,000: $50,000 for past medical expenses, $25,000 for future medical expenses, and $50,000 for past lost earnings. At the time of trial, the plaintiff had received almost $94,000 in SSDI, but those benefits kicked in more than a year after the wreck. And, of course, even after the benefits began, SSDI only paid out a fraction of what the plaintiff was making prior to the wreck.

benefits. On that basis, the trial court denied the SSDI setoff. On appeal, however, the Fifth DCA reversed.

Section 768.76(1) provides, in pertinent part: (1) In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the 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 Fifth DCA construed the italicized language to only require “evidence of a plaintiff’s receipt of benefits from a collateral source for losses sustained,” without regard to whether “each dollar of a collateral source was actually awarded by the jury.” To hold otherwise, said the court, would conflict with the plain language of the statute and “require a party to request an itemized verdict form in every case, potentially as detailed as each individual item of care or benefit received.”

This result is a significant blow to disabled accident victims who worked long enough to qualify for SSDI benefits. For many, SSDI is a benefit of last resort — the safety net which helps keep the lights on and food on the table. And yet, Woudhuizen effectively takes the SSDI benefit earned by the victim and transforms it into a subsidy for the tortfeasor whose negligence rendered the plaintiff disabled in the first place.

But this decision could have implications beyond just disability payments. For instance, think about how health insurer negotiated contractual discounts — declared to be “collateral sources” under §768.76 in Goble v. Frohman, 901 So.2d 830 (Fla. 2005) — could affect setoffs when the jury awards less than the full amount sought for past meds.

Say you board $75,000 in meds, of which $50,000 was covered by health insurance and $25,000 were out-of-pocket. Unfortunately, for reasons only known to the six in the box, the verdict for past meds is $25,000. Even though the health insurer is not a “collateral source” (because of its subrogation claim), the defendant gets a setoff for any contractual discounts negotiated by the insurer. See Goble. So, if those contractual discounts were $25,000 or more, then arguably under the new Woudhuizen decision, your client would net nothing for past meds and be stuck with a $25,000 bill.

And isn’t that the way it should be? Aren’t we better to err on the side of fully compensating the accident victim than allowing the tortfeasor to avoid paying for harm he or she caused?

The courts outside of the Fifth DCA seem (or maybe seemed?) to think so. See, e.g., Despointes v. Florida Power Corp., 2 So.3d 360, 361 (Fla. 2nd DCA 2008) (allowing a claimant who was assigned a right of subrogation to “double recover” because any holding otherwise “would allow the alleged tortfeasor to avoid paying for its alleged tort because the victim was prudent enough to obtain insurance”).

It remains to be seen whether Woudhuizen becomes the law of the land. In the meantime, auto practitioners, at least in the Fifth DCA, need to think about trial strategies to avoid its draconian effect.

Major Victory for Medicaid Recipients: Resurrecting Ahlborn

A few months back, we had an extended discussion about Medicaid’s reimbursement rights under federal and Florida law. See Journal, May/June 2017, Vol. No. 596. To summarize, it had been the law, under Arkansas Dept. of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006) and its progeny, that Medicaid was only entitled to reimbursement from the portion of a settlement or judgment allocable to reimbursement of medical expenses.

This result is a significant blow to disabled accident victims who worked long enough to qualify for SSDI benefits.

For many, SSDI is a benefit of last resort — the safety net which helps keep the lights on and food on the table.

The practical effect of Woudhuizen is to shift the burden to the plaintiff to prove that “the loss sustained” does not include any amount for which the plaintiff received a collateral source payment.

Meanwhile, on October 1, 2017, an amendment to the federal Medicaid law (and more specifically 42 U.S.C. §1396a(a)(25) (H)) effectively repealed Ahlborn, allowing Medicaid to claim a lien on, and be repaid from, any portion of a settlement or judgment, including a recovery for non-economic damages or lost wages.

But prior to Woudhuizen, it was the defendant’s burden to prove that the “loss sustained” included an actual duplication of benefits. See, e.g., Carpenter v. Chavez, 200 So.3d 212, 214 (Fla. 2nd DCA 2016); Pate v. Renfroe, 715 So.2d 1094, 1099 (Fla. 1st DCA 1998); Galante v. USAA Cas. Ins. Co., 695 So.2d 456, 457 (Fla. 4th DCA 1997).

However, Congress ultimately saw the error in its ways, thanks in no small part to our brothers and sisters at the AAJ. On February 8, 2018, as part of the budget deal that ended this year’s second brief government shutdown, Congress retroactively repealed the October 1 amendment, treating it as if it never existed. www.FloridaJusticeAssociation.org | March/April 2018 | 27

TIPSFORAUTOPRACTITIONERS

While this issue may have been small potatoes in the scope of a budget battle over immigration and hundreds of billions of dollars in military spending, it represents a great victory for Medicaid recipients who are injured by the negligence of another.

Statute of Limitations for Insurance Bad Faith Is Five Years

The Eleventh Circuit, applying Florida law, held that an action for bad faith failure to settle “arises in contract,” and is thus subject to a five-year statute of limitations. On that basis, the court reversed a trial court order that dismissed the plaintiff’s claim as being barred

by Florida’s four-year statute of limitations for negligence actions.

See Baranowski v. Geico Gen. Ins. Co., No. 17-12122, 2018 WL 332907 (11th Cir. 1-9-18).

New Trial Because Defendant Prohibited From Questioning Admittedly Biased Venire Members

Commentators often say that trials are the greatest drain on our limited judicial resources. Given the Engle decision, tobacco cases are certainly no exception. One would think that if the plaintiff’s counsel made a reasonable proposal to speed up a portion of that process, both the trial judge and defense counsel would be eager to oblige.

But what purpose would that serve? Everyone acknowledged the 31 venire members were due to be stricken for cause, and that they could not be rehabilitated. Why would the trial judge permit defense counsel to waste a few hours inquiring separately of individuals who were not going to serve on the jury no matter what?

Irimi should serve as a cautionary tale. If a defense attorney wants to question admittedly biased venire members outside the presence of the rest of the venire, even though it would be an utterly pointless exercise, I suppose you are just supposed to bite your tongue. Putting up a fight to save two hours of voir dire is not worth the risk of getting hit with a new trial when you are halfway through your victory lap.

Public Policy > UM Policy Limitations

Two recent cases remind us that you cannot always take a UM policy at face value. See Amica Mut. Ins. Co. v. Willis, So.3d , 43 FLW D161, 2018 WL 443088 (Fla. 2nd DCA 1-17-18); Lentini v. Am. S. Home Ins. Co., So.3d , 42 FLW D2652, 2017 WL 6390376 (Fla. 5th DCA 12-15-17).

In Willis and Lentini, the Second DCA and Fifth DCA respectively held two UM policy exclusions invalid as against public policy, and in violation of Florida’s UM statute.

Well, in a recent Fourth DCA case, the plaintiff’s counsel made such a proposal, and the trial judge agreed. Great news, right? Not so fast.

Willis: UM coverage has to be reciprocal of BI coverage, regardless of what the policy says.

In Irimi v. R.J. Reynolds Tobacco Co., So.3d , 43 FLW D138, 2018 WL 353135 (Fla. 4th DCA 1-10-18), due to time and logistical issues, the plaintiff requested that several biased venire members be excused before the defendants’ counsel asked any questions during voir dire. Even though the defendants acknowledged that these venire members were biased and could not be rehabilitated, the defendants objected to dismissing the venire members before they were given the opportunity to question them. The trial court overruled that objection and excused the biased venire members before defense counsel inquired.

In Willis, the plaintiff was injured by an underinsured motorist driving a golf cart. The plaintiff’s UM coverage excluded coverage for damages caused by a vehicle “[d]esigned mainly for use off public roads while not on public roads,” which would include the golf cart. However, her bodily injury liability coverage contained no such exclusion.

However, after a jury verdict was returned in the plaintiff’s favor, the trial court second guessed its earlier decision, and granted the defendants’ motion for new trial based on its failure to allow the defendants to question the biased venire members before excusing them for cause. On appeal, the Fourth DCA affirmed the grant of new trial, finding that the trial court did not abuse its “considerable discretion” in determining the extent of the venire examination.

The defendant claimed it was prejudiced by being deprived of the ability to question the entire venire together and use “group dynamics” to assist in the use of peremptory and cause challenges.

But the Fourth DCA rejected that argument, declining to endorse a process that would potentially taint the entire panel. Instead, the court suggested that the “better procedure would have been to allow the defense to question the 31 venire members outside the presence of the entire venire once it became apparent that some or all of them might possess a bias that could not be undone.”

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The trial court held the UM exclusion invalid, and the Second DCA affirmed, reaffirming Sommerville v. Allstate Ins. Co., 65 So.3d 558 (Fla. 2nd DCA 2011), where the court held that UM coverage must be reciprocal of liability coverage.

The court noted that while an insurer may limit UM coverage as provided in Fla. Stat. §627.727(9), that subsection does not provide for the exclusion of particular uninsured/underinsured vehicles.

Lentini: Subsection 627.727(9) applies to all UM policies, including specialty policies covering collector’s vehicles.

Over 20 years ago, in Martin v. St. Paul Fire & Marine Ins. Co., 670 So.2d 997 (Fla. 2nd DCA 1996), the Second DCA held that specialty insurance policies insuring antique vehicles are excluded from §627.727’s requirement that an insurer obtain an insured’s written consent before limiting UM coverage as permitted in 627.727(9).

But in the recent Lentini decision, the Fifth DCA certified conflict with Martin.

In Lentini, the insured had a specialty insurance policy for his antique Corvette, but was killed while operating his motorcycle, which was not listed on the policy. The insurer denied UM coverage under the specialty policy’s “other-owned autos” exclusion, and the trial court, bound by Martin, granted summary judgment for the insurer. On appeal, the Fifth DCA reversed, holding that because the insurer did not procure a written consent form as required under §627.727(9) (which would have permitted a (9)(d) exclusion), the other-owned autos exclusion was invalid.

Expressly conflicting with the Second DCA’s holding in Martin, the Fifth DCA held that all UM policies, including specialty policies, have to comply with the requirements of Florida’s UM statute.

“This is not to say that insurance companies cannot limit uninsured motorist coverage in collector or antique vehicle policies. It simply means that in order to do so, the insurer must comply with the statutory mandates of section 627.727(9).”

Do the Requirements of Rule 1.442 Apply in a Federal Diversity Action?

It depends on the subsection. Dig out your civ pro notes on the Erie doctrine.

In Divine Motel Grp., LLC v. Rockhill Ins. Co., 17-11974, 2018 WL 388239 (11th Cir. Jan. 12, 2018), the Eleventh Circuit held that Florida Rule 1.442(b) is “substantive” under Erie.

Therefore, state law applies, and plaintiffs in federal diversity cases still have to wait 90 days after serving the complaint before serving a proposal for settlement.

The decision is noteworthy because past cases have held that portions of Rule 1.442 are “procedural,” and therefore give way to federal law. For example, in Horowitch v. Diamond Aircraft Indus., Inc., 645 F.3d 1254, 1257 (11th Cir. 2011), the Eleventh Circuit held subsection (c)(2)(G)’s requirement that a PFS “include a certificate of service,” conflicted with Fed. R. Civ. P. 5(d)(1). Consequently, federal law (which does not require a certificate of service at the time of service on the opposing party) prevailed.

Getting (and Keeping) Future Meds

It seems that every few years, we find ourselves revisiting the law surrounding future medical awards. Two recent Fifth DCA opinions are prompting us to do so again.

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In the span of one week, the Fifth DCA reversed two awards for future medical expenses for $250,000 and $100,000, respectively.

See Hitchcock v. Mahaffey, So.3d , 43 FLW D282, 2018 WL 663800 (Fla. 5th DCA 2-2-18); State Farm Mut. Auto. Ins. Co. v.

Harmon, So.3d , 43 FLW D238, 2018 WL 559688 (Fla. 5th DCA 1-26-18). Both reversals were based on plaintiff’s lack of “competent substantial evidence” to support the award.

So what can auto practitioners do to prevent this from happening?

Hitchcock, Harmon, and their predecessors make clear that there are two components to establishing sufficient support for a future meds award. Think of it as a two-step process: Step 1: Introduce sufficient evidence to show the plaintiff’s future medical care/treatment is “reasonably certain” to occur.

It is well established that “only medical expenses which are reasonably certain to be incurred in the future are recoverable.” Loftin v.

Wilson, 67 So.2d 185, 188 (Fla. 1953).

How do you make that showing? Just use the “magic words”: “Doctor, do you have an opinion, within a reasonable degree of medical certainty, about whether the plaintiff will require ___________?”

Side note: The “magic words” are something of a myth, passed down by several generations of trial lawyers. It is true that in auto cases involving PIP, the most common way for the plaintiff to satisfy the tort threshold is by demonstrating a “permanent injury within a reasonable degree of medical probability.” See §627.736(2)(b), Fla. Stat. But there is no requirement that an expert use the phrase “reasonable degree of medical certainty” or “probability” when offering opinions about causation, permanency or future damages. That said, the easiest way to avoid any issue about whether you have met your evidentiary burden is to just use the mythical “magical words.”

Just note that if your client’s doctor is more comfortable testifying to a reasonable degree of medical “probability” rather than “certainty,” that should still suffice.1 “Certainty” v. “probability” is really

a distinction without a difference. See Closet Maid v. Sykes, 763 So.2d 377, 382 (Fla. 1st DCA 2000) (observing that “the phrases ‘reasonable medical probability’ and ‘reasonable medical certainty’ are merely different ways of expressing the same concept”).

The real problem arises when the doctor testifies that the plaintiff “might” need future treatment, that surgery in the future is “possible,” and the like. See, e.g., Harmon; Gen. Emps. Ins. Co. v. Isaacs, 206 So.3d 62, 63 (Fla. 4th DCA 2016); Truelove v. Blount, 954 So.2d 1284, 1288 (Fla. 2nd DCA 2007).

Step 2: Introduce sufficient evidence for the jury to determine the amount of those “reasonably certain” future medical treatments.

Just getting your doctor to say the “magic words” is not enough, standing alone, to support a future meds award.

The doctor also has to testify (or there must be other evidence) as to the projected cost of those future treatments. See Harmon (reversing future meds awards where doctor “offered no specific or general dollar amount and provided no reliable means by which the jury could calculate the cost of that potential additional future medical care”). However, prior billing of the same medical treatments “reasonably certain” to occur again in the future, accompanied by testimony that the “billing could reflect the cost of those probable future visits,” should constitute competent substantial evidence of future cost. Id. Putting it all together So what should the auto practitioner take away from this? Think of it as a formula: Step 1 (magic words) + Step 2 (evidence of amount/ cost) = future medical expense award. Follow these steps and you will avoid a trip back to the courthouse.

See Hitchcock (holding that the plaintiff has the burden of proving that “future medical expenses will more probably than not be incurred”) (emphasis added); Auto Club Ins. Co. of Florida v. Babin, 204 So.3d 561, 563 (Fla. 5th DCA 2016) (reversing award of future medical expenses where testifying doctor “did not have an opinion within a reasonable degree of medical probability.”); Volusia County v. Joynt, 179 So.3d 448, 453 (Fla. 5th DCA 2015) (holding doctor’s testimony that injections were a “possibility” was not sufficient, but implying if doctor testified to a “medical probability” it would be sufficient to support an award); Shearon v. Sullivan, 821 So.2d 1222, 1225 (Fla. 1st DCA 2002) (permitting doctor’s testimony “within a reasonable degree of medical probability” regarding need and cost of plaintiff’s future medical treatment); Crosby v. Fleming & Sons, Inc., 447 So.2d 347, 348 (Fla. 1st DCA 1984) (affirming new trial on future damages where doctor’s testimony was “couched in terms of possibilities, not probabilities.”)

1.

BRENT STEINBERG

is an attorney at Swope, Rodante P.A. in Tampa. He is a proud graduate of the University of Florida and UF College of Law, where he was a member of the Florida Law Review. He is an EAGLE member of the FJA, has served as the chair of the FJA Auto Insurance Committee since 2016, and is an FJA director at large for 2017-18. He represents victims of catastrophic personal injury, wrongful death, insurance bad faith, legal malpractice and wrongful coverage denials, handling cases throughout Florida and Georgia at both the trial and appellate levels.

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INSURANCE

Insurance Cases

by Gregory M. Yaffa

Marin was injured in an automobile accident allegedly caused by Blanco, an Infinity Auto Insurance Company policyholder. Marin was treated at Jackson Memorial Hospital and was subsequently discharged. Thereafter, Infinity sent Marin’s then-attorney a letter tendering the $10,000 bodily injury policy limits to settle Marin’s bodily injury claim against Blanco. The letter included a standard release and a $10,000 check made payable to Marin, his attorney, and Jackson Memorial Hospital. Infinity explained in the letter that it included Jackson Memorial Hospital on the check because it appeared that the hospital had a lien for the medical services it provided to Marin. Infinity offered to reissue the check if the lien had been resolved.

that Infinity tender its full policy limits. The letter stated: “It is my understanding that your insured has $10,000 in available liability coverage, which I am requesting that your company tender by delivering the settlement draft to my office by the close of business on April 28, 2014.” On April 25, 2014, Infinity responded by sending Marin’s attorney a letter, which specifically stated that it “agree[d] to meet [Marin’s] settlement demand.” The letter included a $10,000 check made payable to Marin, his attorney, and Jackson Memorial Hospital. Infinity also included a release and an open invitation to submit modifications to the settlement draft. Marin’s attorney treated the payment as a counteroffer because of Infinity’s inclusion of Jackson Memorial Hospital on the settlement check, and therefore rejected the settlement payment on April 30, 2014.

Infinity subsequently filed a motion to enforce the settlement. The trial court granted the motion and dismissed with prejudice Marin’s action filed against Blanco subject to the terms of the settlement on agreement. Marin appealed.

Marin subsequently hired a new attorney, who notified Infinity in writing that he had been retained to represent Marin and demanded

On appeal, Marin argued that Infinity’s inclusion of Jackson Memorial Hospital on the settlement check added a new essential

Inclusion of Hospital on Insurance Settlement Check Not Deemed a Counteroffer When Insured Did Not Specify Type of Payee When Demanding Settlement Draft. Marin v. Infinity Auto Ins. Co., So.3d , 43 FLW D425b, (Fla. 3rd DCA 2-21-18)

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term to the agreement, converting Infinity’s purported acceptance into a counteroffer. The Third District rejected this argument, because Marin’s demand letter only provided two essential terms to reach a settlement: (1) Infinity must tender the $10,000 bodily injury liability limit in the form of a settlement draft; and (2) Infinity must do so by April 28, 2014. Because Marin did not state who should be included on the settlement check, and merely demanded that Infinity must submit a “settlement draft” by April 28, 2014, Infinity’s April 25, 2014, letter and settlement draft was a valid acceptance of Marin’s offer.

Notably, the Third District continued its analysis by reviewing the reasonableness of Infinity’s inclusion of Jackson Memorial Hospital as a co-payee on the settlement check. The Third District concluded that Infinity’s inclusion of the hospital on the settlement check was reasonable because Marin was a Medicaid patient and, under State Farm Mut. Auto. Ins. Co. v. Palm Springs Gen. Hosp. Inc. of Hialeah, 232 So.2d 737, 738 (Fla. 1970), a hospital lien attaches the moment an injured person is admitted as a patient. The court also relied on Government Employees Insurance Co. v. Gonzalez, 512 So.2d 269, 270 (Fla. 3rd DCA 1987), which held that one of the options an insurer had for paying its insured’s PIP claim was to issue a check for the limits payable to both the hospital and the insured.

When PIP Benefits Sought, Deductible Must Be Subtracted from Total Medical Care Charges Before Applying Statutory Reimbursement Limitations. Progressive Select Insurance Company v. Florida Hospital Medical Center, So.3d , 43 FLW D318a (Fla. 5th DCA 2-9-18) On certiorari review, the Fifth District Court of Appeal considered the proper methodology to determine the application of the deductible authorized under §627.739(2), Florida Statutes (2014), when personal injury protection (PIP) benefits are sought by an insured. The circuit court below concluded that an insured’s PIP deductible must be subtracted from the total medical care charges before applying the statutory reimbursement limitations provided in §627.736(5)(a)1.b., Florida Statutes (2014). Progressive Select Insurance Company, however, argued that the statutory limitations must be applied first and the deductible subtracted from that amount.

The Fifth District sided with the circuit court after it engaged in a statutory construction analysis of §627.739. Section 627.739 states in pertinent part: Insurers shall offer to each applicant and to each policyholder, upon the renewal of an existing policy, deductibles, in amounts of $250, $500, and $1,000. The deductible amount must be applied to 100 percent of the expenses and losses described in s. 627.736. After the deductible is met, each insured is eligible to receive up to $10,000 in total benefits described in s. 627.736(1).

However, this subsection shall not be applied to reduce the amount of any benefits received in accordance with s. 627.736(1)(c).

As the Fifth District explained, the statute distinguishes between “expenses and losses” and “benefits.” The statute indicates that the deductible applies to “100 percent of the expenses and losses” whereas “benefits” are only available after the deductible is met.

Prior to its 2003 amendment, the statute was construed by the Florida Supreme Court in Govan v. Int’l Bankers Ins., 521 So.2d 1086 (Fla. 1988) as requiring the deductible to satisfied from the amount that was actually payable out of the policy benefits. The prior version of the statute, however, did not make any distinction between “expenses and losses” for purposes of applying the deductible and “benefits” due to the insured after the reimbursement limitations are applied. The Fifth District considered the Legislature’s 2003 amendment to as indicative of its intent that the deductible be subtracted from the total amount of medical charges before application of the reimbursement limit under §627.736(5)(a)1.b. While the Fifth District ultimately denied Progressive’s petition for writ of certiorari, it certified the question it considered to the Florida Supreme Court as a matter of great public importance.

When Insurance Contract Provides for an Appraisal Process, Insured Is Not Obligated to Wait Until that Process Is Completed Before Filing a Civil Remedy Notice Pursuant to Section 624.155, Florida Statutes. Landers v. State Farm Florida Ins. Co., So.3d , 43 FLW D200 (Fla. 5th DCA 1-18-18) (Substituting Original August 11, 2017, Opinion on Motion for Rehearing) In 2009, Landers’ home sustained a loss from suspected sinkhole activity. Landers submitted a claim to his insurer, State Farm Florida Insurance Company. Landers carried a policy in excess of $1 million with State Farm. State Farm hired SDII Global Corporation (SDII) to conduct a subsidence investigation. After SDII confirmed that sinkhole activity was the cause of the damage to Landers’s home, State Farm admitted coverage. SDII recommend that grout needed to be injected into 65 holes drilled around the perimeter of the home to properly stabilize it at a cost of approximately $350,000.

Landers obtained an independent opinion from Biller Reinhart Structural Group (Reinhart). Reinhart concluded that proper stabilization required underpinning of the home, which would cost approximately $1 million. State Farm provided Reinhart’s report for review by a neutral evaluator from the Department of Financial Services pursuant to §627.7074. The neutral evaluator concluded that underpinning was unwarranted. While State Farm demanded an appraisal under the policy to resolve the parties’ disagreement over the amount of the loss, Landers agreed to proceed with SDII’s recommended repair plan, despite his belief that the repairs were inadequate. State Farm placed its appraisal demand on hold while the stabilization repairs were made.

After the repairs were completed in September 2011, the home continued to experience damage. State Farm reiterated its request for appraisal of the cosmetic damages to the home. Landers hired Sonny Gulati, a geotechnical engineer to examine the property. In January 2012, while Gulati’s report was pending, Landers filed a civil remedy notice (CRN), alleging, among other things, claim www.FloridaJusticeAssociation.org | March/April 2018 | 33

INSURANCE

delay, failure to promptly investigate the claim, failure to adjust the loss, and the failure to tender policy limits. Landers contended that State Farm’s expert’s recommended repairs had been completed but his home remained unlivable. Landers demanded the immediate tender of “the policy limits” of $1,026,500 minus any prior payments that had been made to the insured. In response, State Farm requested that all issues be submitted to appraisal.

In March 2012, Landers brought suit against State Farm for breach of contract. In that suit, State Farm sought to compel appraisal, which Landers opposed. The circuit court compelled appraisal, and Landers appealed from that order, which the Fifth District affirmed. In July 2014, the appraisal panel determined that the amount of loss exceeded the policy limits. State Farm tendered the policy limits in August 2014, without any deduction for the amounts previously paid.

Landers then brought a first-party bad-faith suit against State Farm, alleging10 purported violations of §§624.155(1)(b)1. and 626.9541(1)(i), Florida Statutes (2008), including allegations of claim delay and low-balling. Landers contended that his damages always exceeded the policy limits and that State Farm acted in bad faith by delaying payment of the policy limits until after appraisal.

State Farm moved for summary judgment on the basis that Landers’ CRN was a nullity because, when Landers filed the CRN, a condition precedent to payment — determining the amount of loss through appraisal — had not been fulfilled. The trial court granted summary judgment, and Landers appealed.

The question before the Fifth District was whether an insurer’s demand for appraisal tolls the filing of a CRN until the amount of the appraisal has been established. State Farm argued that the CRN is not effective until all of the contractual preconditions to suit are met and there has been a final determination of coverage and the amount owed. The Fifth District, however, held that under the plain language of §624.155(3)(d), no time limitation is provided for filing a CRN and no determination of coverage and damages is required before the CRN is filed. As the Fifth District explained, the statute “simply states that ‘no action shall lie’ if the bad-faith allegation is corrected or the damages are paid within sixty days of the insurer receiving the notice.” Under the Florida Supreme Court’s decision in Vest v. Travelers Ins. Co., 753 So.2d 1270, 1270 (Fla. 2000), which noted that there is no statutory requirement preventing an insured from sending the statutory notice before a determination of liability of damages, “the purpose of the CRN is to facilitate and encourage good-faith efforts to timely settle claims before litigation, not to vindicate continuing efforts to delay.” Accordingly, the Fifth District concluded that once the appraisal process is complete, and a legally sufficient CRN has previously been provided, the conditions precedent to filing a statutory bad-faith claim are met.

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Abatement of Third-Party Bad Faith Claim Improper Pursuant to Non-Joinder Statute When Plaintiff Has Not Already Obtained Settlement or Verdict in Underlying Negligence Claim.

Geico General Ins. Co. v. Martinez, So.3d , 43 FLW D86 (Fla. 3rd DCA 1-3-18).

In 2009, Martinez was injured while she was a passenger in a vehicle driven by Guevara. Guevara was insured under a GEICO policy that provided bodily injury coverage in the amount of $10,000 per person and $20,000 per occurrence. Martinez filed a one-count negligence complaint against Guevara in 2009. In October 2016, Martinez successfully moved to amend her complaint to add GEICO as a party defendant to the action and to add a third-party bad faith claim against GEICO. GEICO moved to dismiss the third-party bad-faith count. At the hearing on the motion to dismiss, Martinez conceded that the bad-faith count against GEICO was unaccrued and premature because, pursuant to the non-joinder statute (§627.4136, Florida Statutes), the bad-faith claim had not yet accrued and would not accrue unless and until Martinez first obtained a settlement or verdict against Guevara on the underlying negligence claim. The trial court denied the motion to dismiss, and instead abated the bad-faith action until the underlying negligence action was resolved.

GEICO petitioned the Third District Court of Appeal for a writ of certiorari. On review, the Third District quashed the trial court’s orders granting Martinez’s motions to add GEICO as a party defendant and to add a third-party bad faith claim against GEICO. The Third District’s analysis turned on the plain language of the nonjoinder statute, which provides that “No person who is not an insured under the terms of a liability insurance policy shall have any interest in such policy, either as a third-party beneficiary or otherwise, prior to first obtaining a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action that is covered by such policy.” §627.4136(2), Fla. Stat. (2016). Because Martinez conceded that her bad-faith claim had not yet accrued and that she was not an insured under the GEICO policy, the Third District concluded that dismissal, not abatement, was the proper remedy for incorrect application of Florida’s nonjoinder statute. The Third District expressly distinguished its prior cases that had held abatement was proper for an unaccrued and premature third-party bad-faith claim as those cases involved first-party bad-faith claims, and therefore did not implicate the nonjoinder statute.

GREGORY M. YAFFA

is a civil trial lawyer and shareholder at Domnick Cunningham & Whalen. He devotes his practice to representing the victims of catastrophic personal injury, wrongful death and insurance company bad faith. In addition to his successful law practice, Yaffa has been elected into leadership by several respected professional associations including service as President of the Palm Beach County Justice Association, North County Section of the Palm Beach County Bar Association and Past Chair of the FJA Young Lawyers Section.

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MEDICALMALPRACTICE

MEDICAL MALPRACTICE:

RECENT DECISIONS

by Scott R. McMillen & Allison C. McMillen

Second District reverses dismissal with prejudice, holds allegations against hospital sufficient to state cause of action. Payas v.

Adventist Health System/Sunbelt, Inc., So.3d , 2018 WL 911824 (Fla. 2nd DCA 2-16-18). A patient underwent paraesophageal hernia repair surgery using a surgical robot supplied by the hospital where the surgery took place. He suffered years of complications afterward and eventually bled to death during an exploratory surgery, performed by a different surgeon at a different hospital, while trying to determine the cause of his problems. An autopsy revealed a coiled piece of metal around his gastroesophageal junction, alleged to be part of the surgical robot. The personal representative of the patient’s estate brought a medical malpractice wrongful death suit against both hospitals and both surgeons. The trial court dismissed all counts in the Fourth Amended Complaint against the first hospital with prejudice, on the grounds that they failed to state a cause of action because they were too vague and “co-mingled allegations.” The Second District Court of Appeal reversed, holding that all of the plaintiff’s counts against the first hospital were sufficiently pled. Among those counts was one for nondelegable duty based on the inherent danger of surgical robots, although the Second DCA “expressed no opinion on whether [the plaintiff] will be able to prove this claim.” The Court also upheld the sufficiency of the plaintiff’s allegations of direct hospital negligence in relation to maintenance and operation of the robot and training in its use, as well as allegations of vicarious liability for the actions of the first surgeon and the hospital staff. The Second DCA noted that the trial court would be free on remand to address the hospital’s claim that the plaintiff had failed to comply with presuit requirements, which it had not addressed earlier.

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First District holds ALJ erred in disregarding parties’ express stipulation that AHCA lien amount was subject to challenge.

Delgado v. Agency for Health Care Administration, So.3d , 43 FLW D245 (Fla. 1st DCA 1-26-18). A young girl died from complications of a hypoxic brain injury, and her parents brought a medical malpractice wrongful death lawsuit, which settled for $2.25 million. The Agency for Health Care Administration (AHCA) asserted a lien on the settlement proceeds for $357,407.50, the full amount that Medicaid had paid for the child’s related medical expenses. The parents filed a petition with the Division of Administrative Hearings to contest the lien amount in accordance with §409.910(17)(b), Florida Statutes. AHCA and the parents entered a Joint Prehearing Stipulation providing, among other things, that the presumptive reimbursement amount using the statutory formula was $357,407.50, and that the parents “may contest the amount payable to AHCA pursuant to the formula at §409.910(11)(f ) by filing a Petition with DOAH.” After an evidentiary hearing, the Administrative Law Judge found, based on expert testimony, that if the case had gone to trial, the parents would have recovered $8.5 million in intangible damages, plus the past medical expenses. Therefore, the ALJ found, the parents proved by clear and convincing evidence that they had only recovered 25.4 percent of their damages, and that $90,781.39, or 25.4 percent of the asserted lien, constituted a fair and reasonable recovery for AHCA. However, the ALJ went on to rule that under the terms of §409.910(17)(b), only a living Medicaid “recipient” may contest the amount of a lien. Since the parents were not the “recipients,” the ALJ held, they were required to pay the full lien

amount. The First District Court of Appeal reversed. Without deciding the issue of the parents’ status as recipients, the First DCA held that the ALJ had erred in disregarding the terms of the joint stipulation, which expressly provided that the parents could challenge the lien amount. The First DCA rejected AHCA’s argument that the question of whether the parents were recipients under the statute went to their standing, which, as a matter of subject matter jurisdiction, could not be conferred by consent. Either way, the Court found, the parents had independent standing since they had a substantial interest in the outcome of the case.

Third District affirms JNOV for defendant on grounds that opinions of plaintiff’s expert were unsupported by evidence.

Siegel v. Cross Senior Care, Inc., So.3d , 43 FLW D183 (Fla. 3rd DCA 1-17-18). A long-term nursing facility patient was transferred to a hospital with pneumonia and died shortly thereafter. The death certificate listed the causes of death as end-stage dementia and end-stage COPD. The patient’s son sued the nursing facility and several of its administrators for wrongful death. At trial, the plaintiff’s expert testified that a 14-day gap in the nurses’ notes was evidence of inadequate care and monitoring while the plaintiff was developing pneumonia that ultimately caused her death. He further testified that if the patient had been hospitalized four days earlier, she more likely than not would have recovered and lived another three years. The jury found for the plaintiff, but only

CALL FOR FJA OFFICER/DIRECTORS & FJ PAC TRUSTEE NOMINATIONS The FJA/FJ PAC Nominating Committee is seeking nominations for FJA Officer Positions of President-Elect, Treasurer and Secretary and 12 vacancies on the FJA Board of Directors. The FJ PAC is seeking nominations for Districts 3, 4 & 5 Board of Trustees vacancies.

The committee will present a slate of nominees to the membership for consideration at the FJA General Membership Meeting at 1:15 p.m. on Wednesday, June 20, 2018.

The Annual General Membership Meeting will be held in conjunction with the Florida Justice Association’s Annual Convention, June 19-23, 2018, at The Breakers, Palm Beach.

Nominations will also be accepted from the floor at that meeting. Elections for these FJA/FJ PAC positions will take place on Thursday, June 21, 2018, from 3:30-5:00 p.m.

If you are interested and would like further information about officer and Board of Directors positions, please contact Lee Phillips by May 11, 2018, at (850) 521-1033 or lphillips@floridajusticeassociation.org.

awarded $6,133 in damages. The trial court entered a judgment notwithstanding the verdict for the defense, on the grounds that “the opinion of [plaintiff’s expert] is pure ipse dixit; it was unsupported by anything.” The Third District Court of Appeal affirmed, finding that key opinions of the plaintiff’s expert were “directly contradicted by the very medical records on which they [were] purportedly based.” According to the Court, the expert’s failure to reconcile his opinions with the medical records was fatal where, as here, the opinions were based solely on those records. Judge Luck dissented with a written opinion.

ALLISON C. MCMILLEN

is proud to be a second-generation plaintiffs’ attorney, working with her father, Scott McMillen, to represent victims of medical malpractice. She is a director at large on the Board of the FJA and the treasurer of the Central Florida Trial Lawyers Association. McMillen is also on the Editorial Board of the Florida Bar Journal and News, and a member of the Order of the Coif, the George C. Young First Central Florida American Inns of Court, and the Central Florida Association for Women Lawyers.

SCOTT R. MCMILLEN

is the founder of McMillen Law Firm, P.A., with a principal office in Orlando. He is a former member of the Florida Bar Board of Governors, a former FJA Board member, 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. McMillen started his career as a hospital defense attorney, but has been exclusively representing medical malpractice victims throughout Florida and Georgia for over 30 years.

FJA JOURNAL IS AVAILABLE ONLINE!

24-Hour Access In 5 Steps

#1

#2

#3 #4

#5

Visit the Florida Justice Association website at www.floridajusticeassociation.org From the “RESOURCES” tab on the top menu bar, select “FJA Journal” Log in when prompted Click the cover image for the issue you’d like to read You will then be redirected to a new webpage with your online version of the Journal — accessible anytime, anywhere on your mobile device, tablet or computer!

www.FloridaJusticeAssociation.org | March/April 2018 | 37

PRODUCTSLIABILITY

Goodyear G159 Tires: The Latest Wake-Up Call on Protective Order Abuse

by William C. Ourand

On January 1 of this year, the National Highway Safety Administration (NHTSA) announced a probe into certain Goodyear RV tires manufactured 15- to 20-plus years ago — explaining that personal injury litigants had previously been “preclude[ed]” from submitting “data produced in litigation” because it “was sealed under protective orders and confidential settlement agreements.”1 Of course, this is not the first time that judicially sanctioned secrecy is alleged to have kept a dangerous product defect out of the public’s attention. At the same time the G159 was being sold and equipped on new RVs, the Firestone tire defect had grabbed the nation’s attention after having been kept under the radar by court secrecy. Calls for change went out back

then as the nation was momentarily engaged and outraged — yet here we are today, still grappling with the dangerous effects of court secrecy in products liability cases.

This article will analyze the pertinent history surrounding the G159 tire — the subject of the recent federal probe — and its sister-tire, the G670; will then address the role that court secrecy appears to have played in delaying the government’s investigation; and will conclude by identifying long-term solutions that must be deployed if we want to avoid finding ourselves in the same position 20 years from now.

I. The Goodyear G159 and G670 RV Tires

Goodyear manufactured and sold the G159 tire from 1996 through 2003, reportedly marketing the tire to RV manufacturers despite the fact that the tire was not originally designed for use on RVs.2 Instead, according to media reports and court filings, the tire was designed for use on smaller urban delivery trucks, like those used by UPS and FedEx, and speed-rated for just 65 miles per hour.3 Consumer safety advocates contend that the company later increased the speed-rating to 75 miles per hour to secure market share for RV applications — despite the fact that the tire allegedly could not safely perform at that speed and usage.4 The G159 showed early signs of trouble. In 1999, RV manufacturer Fleetwood issued two separate recalls of Class A motorhomes to replace G159 tires with larger tires produced by Michelin.5 The recalls followed four crashes reportedly occurring in 1998 and 1999, involving two fatalities.6 Then, in 2000, Goodyear released a technical service bulletin which stated that Monaco Coach Corporation would replace G159 tires on certain Windsor RV models with larger tires.7 The 2000 Goodyear bulletin followed 93 reported tread separations.8 Consumer safety advocates contend that the G159’s original design intentions and consequent limitations are the direct cause of many of the failures and crashes involving the tire.9 Among other things, they argue that the tire’s design and construction causes it to overheat when it is operated at interstate speeds for a prolonged period of time.10 38 | March/April 2018 | www.FloridaJusticeAssociation.org

This, in turn, can allegedly lead to degradation, damage, and, ultimately, tread separation.11

protective orders and confidential settlement agreements, precluding claimants from submitting it to NHTSA.”24

Goodyear allegedly fought to keep the numbers of injuries and deaths associated with the G159 confidential and secret from the public.12 However, last year the company was required to disclose lawsuit, death, and injury numbers as part of a civil action.13 The disclosed numbers were as follows: • 41 lawsuits from the years 1999 through 2010; • 98 estimated deaths and injuries; • 600 known property damage claims; and • 3,484 warranty adjustments.14

The Court order referenced in the NHTSA probe came about as a result of the lengthy and still-ongoing litigation between the Haeger family and Goodyear.25 Several members of the Haeger family were severely injured as a result of a 2003 rollover crash.26 They subsequently filed a lawsuit, and after being allegedly stonewalled by Goodyear in discovery, settled their case in 2010.27 A few months later, their attorney read about a verdict against Goodyear in another G159 case — a case in which Goodyear had produced much more testing and other discovery.28 This, in turn, led to both a request for sanctions in the family’s federal action (which has resulted in a SCOTUS decision and remains ongoing to this day), as well as parallel state court litigation in Maricopa County, Arizona (which also remains ongoing to this day).29 During this lengthy war, the Haeger family’s attorney eventually gained court approval to disclose the information to NHTSA, prompting the agency’s investigation into the matter.30

In the mid-2000s, Goodyear unveiled a new tire, the G670, which the company continues to sell this day.15 According to Goodyear’s website, the G670’s “tread pattern produces lower heat, enhanced strength and reduces squirm for enhanced handling.”16 The G670 appears to have been designed as a replacement for the G159. In 2006, Tim Miller, who was Goodyear’s Marketing Communication Manager at the time, answered a consumer question in an industry publication as follows: Q. I have a 2002 Monaco motorhome. It came with (6) G159’s.

The rear are fine, however, second rib on the front is wearing down below the rest of the ribs.

A. We now have a tire designed especially for RV’s (G670 RV).

Whereas the G159 was a truck tire that was used on RV’s the G670 RV was designed to be used on these vehicles. When it comes time to replace the tires, I suggest you have the alignment checked and try the G670 RV tires.17 However, the G670 does not have a clean record either. Notably, the G670 has been the subject of several products liability actions over the past decade.18 The tire has likewise appeared in NHTSA’s Early Warning Reporting (EWR) database — including in connection with two deaths.19 NHTSA’s safercar.gov website also contains several consumer complaints in which individuals have reported G670 RV tires suffering tread separations and other problems.20

III. Fighting Against Protective Order Abuse

The G159 saga provides a clear and poignant example of the danger posed by the type of restrictive protective orders that have become all too common in modern products liability litigation. If not for the continuing efforts of the Haeger family, it is very likely that the federal government would never have looked into the matter at all. And, while it is not yet clear what, if any, action the agency will take as part of its investigation, the mere announcement has prompted significant media attention and scrutiny.31 But this is not the first time this lesson has been taught. After the Firestone tire defect grabbed national attention almost 20 years ago, people were outraged to find out that court orders had effectively kept the defect out of the public’s and NHTSA’s attention for years.32 One legal scholar reflected that “it seems obvious that the secrecy agreements and orders worked to delay the recall of these tires for years,” and that “[i]n those years, 271 people died in accidents linked to Explorer/Firestone tire failure, and more than 800 people were seriously injured.”33

On January 1, 2018, NHTSA’s Office of Defect Investigations (ODI) announced an investigation into the G159 tire.21 The announcement and investigation came about “[a]s the result of a court order authorizing the release of Goodyear records to NHTSA.”22 NHTSA explained that, pursuant to the order, it “obtained complaint data alleging that Goodyear G159 tires installed on Class A motor homes failed in service, causing deaths or personal injuries,” and “[t]he number of these claims suggests that the failures may stem from a safety related defect.”23

But what changed after Firestone? Sadly, not much — hence NHTSA’s statements in opening the G159 probe. The sad reality is that defendants still routinely insist on confidentiality orders and then blanketly designate all materials produced as “confidential,” regardless of whether such documents are entitled to any legal protection under controlling law. This improper and abusive practice often becomes overwhelming for the plaintiffs’ attorneys and the court, as defendants threaten to force a line-by-line in camera review of thousands — or millions — of pages’ worth of document production. But if we want to prevent the problems seen in the Firestone or the recent G159 probe from recurring again and again, it’s critical that we hold the defendant’s feet to the fire on court secrecy.

NHTSA’s ODI also provided a succinct explanation as to why it was only now learning of this issue and opening an investigation. Specifically: “Many of these claims were not required to be reported under 49 CFR Part 579 and the data produced in litigation was sealed under

Fighting protective order abuse will require careful attention to the specific factual and procedural circumstances of the case. However, as a general rule of thumb, the following three steps should be considered and followed if applicable.

II. The NHTSA Probe

www.FloridaJusticeAssociation.org | March/April 2018 | 39

PRODUCTSLIABILITY

Step 1: Assert the Sunshine in Litigation Act if the Product Constitutes a “Public Hazard” The Sunshine in Litigation Act precludes courts from entering any “order … which has the purpose or effect of concealing a public hazard or any information concerning a public hazard … or concealing any information which may be useful to members of the public in protecting themselves from injury which may result from the public hazard.” Accordingly, “when the Sunshine in Litigation Act is raised, the possible existence of a public hazard can limit the use of confidentiality or protective orders. Therefore, the possible existence of a public hazard must be determined upfront.”35 Florida courts have recognized that products that cause injuries to Floridians are “public hazards” for purposes of the Sunshine in Litigation Act.36 These same decisions specifically forbid the type of abusive blanket secrecy orders which defendants often demand in products liability cases.37 After all, as explained by the Third District Court of Appeal, “when a blanket confidentiality order is entered protecting a quantity of documents related to the hazard … information which could protect the public from the hazard would ... remain concealed from the public the Act seeks to protect.”38 As such, where “there has been a suggestion that the [product] at issue constitutes a public hazard,” the trial court must “conduct an in-camera review of the documents to determine whether the [product] and the information sought by the [plaintiff] fall within the purview of [the Sunshine in Litigation Act].”39 Step 2: Distinguish “Trade Secrets” from the Amorphous “Confidential Information” Catchall Defendants often begin by discussing the need to protect their “trade secrets,” but then overreach by trying to extend the same protection to anything (which is usually everything) they decide to place under an amorphous catchall “confidential information” label. The term “trade secrets” has a statutory definition; specifically, it means “information, including a formula, pattern, compilation, program, device, method, technique, or process that: (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”40 The term “confidential information,” on the other hand, has no definition or standard in Florida products liability jurisprudence.

Judge Farmer aptly noted this point in his dissenting opinion in Cordis Corp. v. O’Shea, 988 So. 2d 1163, 1169 (Fla. 4th DCA 2008) (Farmer, J., dissenting): Frankly, I also struggle to appreciate how Cordis has any reasonable expectation of privacy in these materials. Cordis placed its product in the public marketplace of its own free will. Is Cordis arguing that when the product it sold in the public marketplace proves defective, causing injury to consumers, Cordis is privileged to hide information about the 40 | March/April 2018 | www.FloridaJusticeAssociation.org

product and its defect, as well as its own prior knowledge, merely by labeling the information ‘confidential’? Does the law’s solicitude for the trade secrets of commercial entities who voluntarily derive profits in the public marketplace extend to protecting merely ‘confidential’ information about the harms caused by the products? If so, why? If no trade secret is shown, what makes the information ‘confidential’ for discovery purposes? We have no record of an answer to these questions.41 On a related note: the Cordis Corp. majority opinion is frequently invoked by defendants while they attempt to cloak discovery materials in secrecy. In doing so, they almost always overstate the reach and effect of that opinion on this issue. As noted in Judge Farmer’s dissent, there was no transcript for the hearing that was the subject of the Cordis Corp. appeal, the documents were never produced for the court to review during an in camera inspection, and the “confidential” designation was apparently never challenged.42 As a result, the decision does not turn on or address the propriety of the “confidential label” utilized by the defendants, but instead is solely isolated to the narrow question of whether the designated “confidential” materials could be properly shared with other litigants (an issue discussed below). Cordis Corp. consequently provides no precedential value to a defendant arguing that any specific kind of information or document qualifies as “confidential” such that that they should be allowed to deviate from standard procedures and require complete secrecy. And, in the years that have followed, no other Florida appellate decision has answered the critical questions posed by Judge Farmer as to which kinds of information are “confidential” for purposes of discovery in a products liability case.

In short: the amorphous “confidential information” catchall label that defendants frequently invoke has no meaning or standard under Florida products liability law. Fight them on this, and in doing so, make sure to create a clear record to address any appellate issues.

Step 3: Insist Upon Sharing Provisions Sharing provisions are express protective order terms which “allow litigants to collaborate between cases using common discovery.”43 Courts and legal commentators have recognized that the use of sharing provisions both “increases the efficiency of the discovery system,” and “increases transparency and integrity in the civil discovery system.”44 As explained by one commentator: “While litigation abuse and fraud are hopefully the exceptions and not the rule, serious misconduct has been documented. And in at least some cases, comparison of discovery responses, like deposition testimony, between two cases has revealed perjury and other inconsistent responses.”45 In addition, sharing provisions can and should also expressly include the right to share documents with government safety agencies.

NHTSA (or any other pertinent safety agency) should never be left in the dark about documents which might evidence a safety defect, as NHTSA itself stated happened with respect to the G159 tires.46 Florida law is fairly sparse on the issue of sharing provisions. There are two cases which expressly address such provisions: the Cordis Corp. opinion referenced above, and Wal-Mart Stores E., L.P. v. Endicott, 81 So. 3d 486 (Fla. 1st DCA 2011). Cordis Corp. simply held that shar-

ing of trade secret and “confidential” information is permissible with “collateral litigants,” but not with those who are “not of record and not engaged in collateral litigation.”47 Wal-Mart subsequently relied upon Cordis Corp. in rejecting another sharing provision in a protective order based on the particular facts of that case.48 Beyond their clear recognition that sharing provisions are properly extended to those engaged in collateral litigation, Cordis Corp. and Wal-Mart are otherwise inherently limited for two reasons. First, neither decision addresses the Sunshine in Litigation Act. Indeed, the Cordis Corp. opinion goes out of its way to specifically note that neither party raised the Act as an issue in the case.49 Second, neither decision discusses nor addresses what is meant by the term “confidential” information. While defendants may invoke those decisions in an attempt to limit sharing of their so-called “confidential information,” they cannot point to any part of either decision that defines what that term means. This another reason why it is so critical to push back against the defense’s effort to designate anything and everything as “confidential” and “protected.”

ODI Resume, Investigation PE 17-009, available at https://static.nhtsa.gov/odi/inv/2017/INOAPE17009-5650.PDF 2.

Goodyear G159 tire Failures on RVs Finally Dragged into the Public Eye, Safety Research and Strategies, available at http://www.safetyresearch.net/blog/articles/ goodyear-g159-tire-failures-rvs-finally-dragged-public-eye (July 29, 2010).

3.

Id. 4.

Id; see also Tire Suit a Warning to RVers: Are Yours Safe?, RVBusiness, available at http://www.rvbusiness. com/2010/06/tire-suit-a-warning-to-rvers-are-yours-safe/ (June 30, 2010).

5.

NHTSA Recall 99V277000 & 99V163000, available at https://www.nhtsa.gov/vehicle/1999/FLEETWOOD/ AMERICAN%252520HERITAGE#recalls (June 29, 1999 and Oct. 15, 1999); see also Persistent RV Tire Problems Prompt Fifth Recall; NHTSA investigation Focuses new Attention on RV Safety, Safety Research and Strategies, available at http://www.safetyresearch.net/ blog/articles/persistent-rv-tire-problems-prompt-fifth-recall-nhtsa-investigation-focuses-new (Aug. 1, 2006).

6.

Is Goodyear Headed for NHTSA Sanctions?, Safety Research and Strategies, available at http://www. safetyresearch.net/blog/articles/goodyear-headed-nhtsa-sanctions (Jan. 12, 2008).

7.

Id. 8.

Id. 9.

Is Goodyear Headed for NHTSA Sanctions?, Safety Research and Strategies, available at http://www. safetyresearch.net/blog/articles/goodyear-headed-nhtsa-sanctions (Jan. 12, 2008).

10.

Id. 11.

Id. 12.

Id. 13.

Id. 14.

Id. 15.

Unisteel G670 RV, available at https://www.goodyear1.

IV. Conclusion

NHTSA’s startling candor in opening its G159 investigation should serve as yet another wake-up call about court secrecy. To prevent this scenario from playing out again and again, protective order abuse must be stopped. If it is not, then we will almost certainly find ourselves locked into the same tired and tragic cycle of concealment, needless deaths and injuries, and fleeting outrage in the decades to come. To assist this effort, this article has laid out several ways to fight against the abusive practices frequently employed by manufacturers and other defendants to secure secrecy of materials produced in discovery.

WILLIAM C. 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.

rvtires.com/tire-selector.aspx (last accessed Feb. 7, 2018).

16.

Id. 17.

Ask The Experts, FleetOwner, Archive for June 2006 (emphasis added).

18.

See, e.g., Andrews v. Goodyear, Case No.: 3:17-cv00597 (E.D. Va.); Harstock v. Goodyear, Case No.: 5:13-cv-00419 (S.D. S.C.).

19.

NHTSA’s Early Warning Reporting database is available at: https://www-odi.nhtsa.dot.gov/ewr/.

20.

NHTSA’s consumer complaint database is available at: https://www-odi.nhtsa.dot.gov/owners/SearchSafetyIssues 21.

ODI Resume, Investigation PE 17-009, available at https://static.nhtsa.gov/odi/inv/2017/INOAPE17009-5650.PDF. 22.

Id. 23.

Id. 24.

Id. 25.

Is Goodyear Headed for NHTSA Sanctions?, Safety Research and Strategies, available at http://www. safetyresearch.net/blog/articles/goodyear-headed-nhtsa-sanctions (Jan. 12, 2008).

26.

Dennis Wagner, Judge: Goodyear Deceptive in Defense of Flaws in Tire, The Republic, AZ Central, available at https://www.azcentral.com/story/news/arizona/ investigations/2015/09/03/goodyear-deadly-tires-coverup/71618544/ (Sep. 3, 2015).

27.

Id. 28.

Id. 29.

Id. 30.

Dennis Wagner, Safety Group Wants Records Opened on Goodyear Tire-Linked Deaths, The Republic, AZ Central, available at https://www.azcentral.com/ story/news/local/arizona-investigations/2018/01/10/ safety-group-wants-records-opened-goodyear-tire-linkeddeaths/1006051001/ (Jan. 10, 2018).

31.

See, e.g., Ryan Felton, How Goodyear Hid Evidence of ‘The Worst Tire Made in History’ Linked To At Least

9 Deaths, Jalopnik, available at https://jalopnik.com/ how-goodyear-hid-evidence-of-the-worst-tire-made-inhis-1822200424 (Jan. 29, 2018).

32.

Susan P. Koniak, Conference on Legal Ethics: “What Needs Fixing?”: Are Agreements to Keep Secret Information learned in Discovery, Legal, Illegal, Or Something In Between, 30 Hofstra L. Rev. 783, 786-87 (Spring 2002) 33.

Id.; 1990 Fla. SB 278.

34.

Fla. Stat. §69.081(3).

35.

Goodyear Tire & Rubber Co. v. Schalmo, 987 So. 2d 142, 146 (Fla. 2d DCA 2008).

36.

Jones v. Goodyear Tire & Rubber Co., 871 So. 2d 899, 906 (Fla. 3d DCA 2003) (“Since the jury clearly found that Jones was injured by the tire in question, the tire is deemed a ‘public hazard.’”).

37.

Id. at 1086.

38.

Id. at 1086.

39.

Schalmo, 987 So. 2d at 146; see also Goodyear Tire & Rubber Co. v. Jones, 929 So. 2d 1081, 1084 (Fla. 3d DCA 2005) (holding that “Goodyear led the trial court to error and thereby obtained a confidentiality order without a determination of whether its tires constituted a public hazard under the Sunshine in Litigation Act”).

40.

See Fla. Stat. §688.02(4).

41.

988 So. 2d 1163, 1169 (Fla. 4th DCA 2008) (Farmer, J., dissenting).

42.

Id. at 1165.

43.

Dustin B. Benham, Dirty Secrets: The First Amendment in Protective-Order Litigation, 35 Cardozo L. Rev. 1781, 1823 (June 2014).

44.

Id. 45.

Id. 46.

ODI Resume, Investigation PE 17-009, available at https://static.nhtsa.gov/odi/inv/2017/INOAPE17009-5650.PDF 47.

Cordis Corp., 988 So. 2d at 1168.

48.

Wal-Mart, 81 So. 3d at 490.

49.

Cordis Corp., 988 So. 2d at 1168.

www.FloridaJusticeAssociation.org | March/April 2018 | 41

EVIDENCE

RECENT EVIDENCE CASES OF INTEREST

by Matt Schultz

NOTE: Recent cases may not be released for publication.

The Florida Supreme Court adopts, to the extent it is procedural, section 1 of chapter 2011-183, Laws of Florida (§90.5021, Fla. Stat.), which eliminated the common law fiduciary exception to the attorney-client privilege. In other words, communications between fiduciaries (like PRs, trustees, GALs, etc.) are protected to the same extent as if the client were not acting as a fiduciary. Didn’t everyone assume so? Apparently, the law created a conflict for probate lawyers. The Supreme Court adopted it retroactively to its 2011 enactment. In re Amendments to Fla. Evidence Code, So.3d , 2018 WL 549179, 43 FLW S31 (Fla. 1-25-18).

Family medicine expert’s opinions based solely on medical record review lack “sufficient evidentiary weight” to be presented to the jury. Dr. Lee Fisher opined for plaintiff that there was a 14-day gap in the nursing home chart, inferring that care was substandard and led to a delayed hospital referral that, in turn, caused the patient’s death.

The jury returned with a low award and the court entered judgment notwithstanding the verdict. The Third DCA affirmed, noting that the case rested almost entirely on Dr. Fisher’s testimony. The court analyzed the record and found that Dr. Fisher drew inferences directly at odds with the evidence. Judge Luck dissented on grounds that the court was weighing the evidence and improperly drawing inferences against the non-moving party. Siegel v. Cross Senior Care, Inc., So.3d , 43 FLW D183, 2018 WL 443161 (Fla. 3rd DCA 1-17-18).

Comment: Judge Luck’s discussion and collection of citations is worth considering for the JNOV section in your trial notebook.

For purposes of distinguishing this case in the future, keep in mind 42 | March/April 2018 | www.FloridaJusticeAssociation.org

the Third DCA said (quoting the trial court) that the case was “built on a total house of cards” and that the expert’s opinion was “pure ipse dixit [that] was unsupported by anything.” Unless you find yourself with such an expert, the case can do you no harm.

To establish the business records exception to the hearsay rule, the witness need not be employed by the “business” in question nor have familiarity with the documents, but he must be familiar with the business’ activities and how the documents are produced. In this case, the witness testified for a loan servicer that a default letter was sent and that fact was recorded at or near the time in the loan servicer’s “letter log.” However, that entry was based on a communication from a third-party mailing service that it had mailed the letter. The witness did not demonstrate sufficient familiarity with the mailing service’s practices to support his testimony that the letter had been mailed in the normal course of the mailing service’s business. Merely employing the “magic words” from the business record exception does not make the document admissible. Knight v. GTE Fed. Credit Union, So.3d , 43 FLW D348a, 2018 WL 844352 (Fla. 2nd DCA 2-14-18).

A pretrial Daubert challenge, if deferred until trial, requires a contemporaneous objection at trial or it is waived on appeal.

Defendants raised a Daubert issue pretrial and the court deferred ruling. When testimony was given on the subject matter at trial, no contemporaneous challenge was made. The Fourth DCA held the issue was not preserved for appeal. Philip Morris USA Inc. v. Gore, 2018 WL 859058 (Fla. 4th DCA Feb. 14, 2018).

Exclusion of IME opinion under Daubert affirmed based on “unwarranted inferences and assumptions as to [plaintiff ’s] pre-existing condition.” Plaintiff alleged that the defendant aesthetician’s “chemical peel” permanently exacerbated plaintiff’s preexisting skin condition. Defendant’s IME expert testified based upon a 20minute exam that plaintiff’s condition was not caused by the chemical peel. He admitted among other things that he did not view any before-and-after photos of plaintiff and he assumed her preexisting condition was of a “normal distribution” because her treater’s records did not say otherwise. The court excluded his testimony under Daubert because it was speculative, did not sufficiently consider her preexisting state, and was based on a cursory exam performed while plaintiff was on medication to help alleviate her condition.

The Fourth DCA affirmed: “Although courts have recognized that a physical examination and review of medical records may qualify as an acceptable and reliable methodology … an expert’s opinion should not, as here, be based on assumptions not rooted in any facts actually contained in the medical records relied upon.” Sanchez v.

Cinque, So.3d , 43 FLW D359b, 2018 WL 851366 (Fla. 4th DCA 2-14-18) (emphasis added).

Comment: The same rationale would apply in a non-Daubert setting because every expert opinion must be supported by sufficient facts and data. A cross-examination at deposition tracking some of the elements lacking in this doctor’s

methodology would go a long way toward excluding any expert who made similar mistakes.

A declarant who invokes his Fifth Amendment right to silence is “unavailable” for hearsay purposes. Payton v. State, 2018 WL 576017, So.3d , 43 FLW D250 (Fla. 1st DCA 1-29-18) (citing Heynard v. State, 992 So.2d 120 (Fla. 2008)).

Testimony concerning business records not admitted into evidence is inadmissible hearsay. Thus, a homeowner could not establish felonious intent to support a grand theft charge by testifying that defendant cashed her check the day she wrote it when the basis for her statement was the bank’s (hearsay) statement to her that it had been cashed. The court analogized to the well-known, but oftforgotten, principle that one cannot testify to the contents of records that have not been admitted into evidence. Leggett v. State, 2018 WL 522234, So.3d , 43 FLW D230 (Fla. 3rd DCA 1-24-18). See also McCampbell v. Fed. Nat’l Mortg. Ass’n, So.3d , 43 FLW D351b, 2018 WL 844361 (Fla. 2nd DCA 2-14-18) (proper to reverse “where [the] trial court improperly allowed the bank’s witness to give hearsay testimony regarding the content of business records which had not been admitted into evidence”).

Comment: Of course the analysis is more complicated when the witness is an expert testifying to materials relied upon in formulating her opinions, which was the subject of an earlier column.

Did you know? Once your opponent lays the foundation for the business records exception, you may preclude admission by showing the documents are “untrustworthy.” But the devil is in the details, hence a certified conflict over the issue. Jackson v. Household Finance Corp. III, 2018 WL 627078 (Fla. 2nd DCA

1-31-18) (citing Love v. Garcia, 634 So. 2d 158 (Fla. 1994) and certifying conflict with Maslak v. Wells Fargo Bank, N.A., 190 So. 3d 656 (Fla. 4th DCA 2016)).

An expert opinion that amounts to a conclusion of law is inadmissible. HSBC Bank USA, Nat’l Assn. v. Buset, 2018 WL 735265 (Fla. 3rd DCA 2-7-18).

“When the terms of an agreement are necessary for resolution of an issue brought before a court, the failure to introduce the agreement itself into evidence violates the best evidence rule.” This includes modifications to original agreements, which are “as much a part of the parties’ agreement as the original [agreement] itself.”

McCampbell v. Fed. Nat’l Mortg. Ass’n, 2018 WL 844361 (Fla. 2nd DCA 2-14-18) (quoting Rattigan v. Central Mortg. Co., 199 So.3d 966 (Fla. 4th DCA 2016)).

“The attorney-client privilege, unlike the work-product doctrine, is not concerned with the litigation needs of the opposing party.”

Sedgwick Claims Mgmt. Servs. v. Feller, 2018 WL 664210, So.3d , 43 FLW D271 (Fla. 5th DCA 2-2-18) (quoting Genovese v. Provident Life & Acc. Ins. Co., 74 So. 3d 1064 (Fla. 2011)).

Trial Notebook – A Quick Reference for Trial: Impeachment Generally In Florida, a witness may not be impeached by any means not recognized in the Evidence Code. Rose v. State, 472 So.2d 1155, 1157-58 (Fla. 1985); Pantoja v. State, 990 So. 2d 626, 629 (Fla. 1st DCA 2008).

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EVIDENCE

A witness’s credibility is not an issue until they take the stand. Therefore, you may not elicit evidence attacking a witness’s credibility before the witness testifies. Erp v. Carroll, 438 So.2d 31, 35 (Fla. 4th DCA 1983).

Counsel must have a good-faith basis for questions that attack a witness’s credibility. Shimko v. State, 883 So.2d 341, 343 (Fla. 4th DCA 2004).

Counsel must take the answer on all collateral matters, i.e., contradiction is permitted only as to material facts. Eaton Corp. v. Votour, 895 So.2d 466, 468 (Fla. 1st DCA 2005).

The Evidence Code (§608) recognizes the following means of impeachment by any party, including the party calling the witness: 1. Introducing Prior Inconsistent Statements (§§608(1), 614) • The time, place, and circumstance of the prior statement must be called to the witness’s attention before questioning on the contents of the statement. Pearce v. State, 880 So. 2d 561 (Fla. 2004).

• If written or reduced to a writing, the statement must be shown to the witness (upon motion per §614(1)).

• If the witness admits the statement, extrinsic evidence is not admissible. (§614(2)) • If the witness denies or does not distinctly admit the prior statement, extrinsic evidence that the witness made the statement may be admitted. (§614(2)) • Prior inconsistent statements made under oath are not hearsay and thus are admissible both to impeach and as substantive evidence. Moore v. State, 452 So. 2d 559, 562 (Fla. 1984); §801(2)(a).

• Party opponent admissions are not subject to these requirements. (§614(2)) • The prior testimony (e.g., deposition) does not have to be filed with the court, but see Northup v. Acken re prior disclosure to the opposing party.

• A witness may testify about a prior inconsistent statement on direct to “soften the blow” (aka anticipatory rehabilitation).

Ehrhardt, Florida Evidence §608.2 at 620-21 (2015 ed.).

2. Demonstrating Bias (§608(2)) • This includes “prejudice, interest in the outcome of a case, and any motivation for a witness to testify untruthfully.” Jones v.

State, 678 So. 2d 890, 892 (Fla. 2nd DCA 1996).

• Evidence inadmissible under other theories may be admissible here. See Ehrhardt, Florida Evidence §608.5 at 654-55 (2015 ed.).

• Extrinsic evidence is admissible to demonstrate bias. Hair v.

State, 428 So. 2d 760, 762 (Fla. 3rd DCA 1983).

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3. Attacking Character (§608(3)) • A party may attack the witness’ character under §609 (reputation for credibility). The evidence must be in the form of reputation evidence and may relate only to (un)truthfulness. (§609(1)) • Evidence of a truthful character is admissible only after the witness’s character has been attacked by reputation evidence. (§609(2)) • A party may attack the witness’s character under §610 (prior convictions). It must involve crime punishable by more than one year or involving dishonesty or false statement (§610(1)) and must not be so remote that it does not bear on character. (§610(1)(a)). “Other than this limited exception [90.610], the Evidence Code does not provide for impeachment of a witness by evidence of prior acts of misconduct.” Pantoja v. State, 990 So. 2d 626, 629 (Fla. 1st DCA 2008) (approved 59 So. 3d 1092 (Fla. 2011)). But see §404 (character evidence).

4. Defect in Capacity, Ability or Opportunity to Observe, Recall, or Recount (§608(4)) • “This may relate to the witness’ memory, eyesight, ability to understand, or observe and a host of other things that might affect the witness’ ability to observe, remember and accurately recount the matters about which he testified. A witness’ mental state or condition is also a proper basis for this kind of impeachment.” Gamble v. State, 492 So.2d 1132, 1133-34 (Fla. 5th DCA 1986).

• A witness’ memory may be tested because an inability to remember related facts goes to the witness’ capacity to recall.

Ehrhardt, Florida Evidence §608.7 at 661 (2015 ed.).

5. Contradiction: Proof by Other Witnesses That Material Facts Are Not as Testified (§608(5)) • This method of impeachment “is not limited to the actual testimony of other witnesses, but may include extrinsic evidence, such as by the use of surveillance videotapes.” Eaton Corp. v.

Votour, 895 So. 2d 466, 468 (Fla. 1st DCA 2005).

• Contradiction is only permitted as to material facts; therefore, contradiction on collateral matters is not permitted. Id. See also Anderson v. State, 133 So.3d 646 (Fla. 1st DCA 2014) (evidence contradicting clothing victim claimed to have been wearing was collateral and inadmissible).

MATT SCHULTZ

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

An attorney should not discuss non-recourse advance funding with a client unless it is done in compliance with Florida Bar Ethics Opinion 00-3. The Florida Bar discourages the use of non-recourse advance funding companies. An attorney may provide a client with information about companies that offer non-recourse advance funding if it is in the client’s interest and done in compliance with Florida Bar Ethics Opinion 00-3. The individual lawyer is responsible for ensuring that his or her conduct is in compliance with the Rules Regulating The Florida Bar and comports with Florida Ethics Opinion 00-03. The Florida Justice Association recommends that attorneys who do provide names of non-recourse advance funding companies to clients should provide only names of companies that are in conformity with the guidelines contained in the agreement between the New York Attorney General and certain companies dated Feb. 17, 2005. The Florida Justice Association makes no determination or representation as to whether any particular non-recourse advance funding company is in conformity with Florida Bar rules or opinions, or any other guidelines.

CIVILPROCEDURE

Collecting Judgments with No Insurance – Proceedings Supplementary

by Roy D. Wasson

A. Introduction

Finally, after long years of tough litigation the jury returned a favorable verdict and you have a substantial judgment in your client’s favor. Unfortunately, the defendant did not have insurance available to pay that judgment and you are hoping to find a way to make that piece of paper worth more than a keepsake in a frame on your office wall. The judge has ordered the defendant to complete Form 1.977 to disclose its assets. But past experience tells you that uninsured defendants use layers of deception to conceal their ownership of bank accounts, receivables, real estate and tangible property that can be sold to satisfy your judgment. The chances that the defendant will honestly reveal where it has parked funds you can garnish are slim. The time has come to learn the process for initiating something called “proceedings supplementary.”

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It is not that difficult, but you must follow a path through statutory underbrush to achieve the two goals of such proceedings: 1) to discover information identifying who possesses assets you can levy against or garnish; and 2) to bring non-parties who are holding the defendant’s funds into the litigation.

B. Role of Proceedings Supplementary

Section 56.29, Florida Statutes (2016), governs proceedings supplementary. Those are proceedings the Supreme Court of Florida long ago described as the methods which allow a judgment creditor “to ferret out what assets the judgment debtor may have or what property of his others may be holding for him or may have received from him to defeat the collection of the lien or claim, that might be subject to the execution.” Young v. McKenzie, 46 So.2d 184, 185 (Fla. 1950).

The statute governing proceedings supplementary is “equitable in nature and should be liberally construed.” Mejia v. Ruiz, 985 So.2d 1109, 1112 (Fla. 3rd DCA 2008).

Proceedings supplementary are conducted before the same judge who tried your case, and do not require filing a new lawsuit to allow discovery in aid of execution and to implead non-parties after judgment. The purpose of such proceedings is to “enable speedy and direct proceedings in the same court in which the judgment was recovered to better afford to a judgment creditor the most complete relief possible in satisfying the judgment.” Zureikat v. Shaibani, 944 So.2d 1019, 1023 (Fla. 5th DCA 2006). “The statutory procedure was designed to avoid the necessity of the judgment creditor initiating an entirely separate action for a creditor’s bill.” Regent Bank v. Woodcox, 636 So.2d 885, 886 (Fla. 4th DCA 1994).

C. Initiating Proceedings Supplementary

To initiate proceedings supplementary, §56.29(1) “requires that the judgment creditor have an unsatisfied judgment and file an affidavit averring that the judgment is valid and outstanding.” Fundamental Long-Term Care Holdings, LLC v. Estate of Jackson ex rel. Jackson-Platts, 110 So.3d 6, 8 (Fla. 2nd DCA 2012). When a judgment creditor holds an unsatisfied judgment and files a motion and affidavit in compliance with §56.29(1), “the judgment creditor is entitled to these proceedings supplementary to execution.” §56.29(1), Fla. Stat.

(2016). “Upon a showing of the statutory prerequisites, the court has no discretion to deny the motion.” Biloxi Casino Corp. v. Wolf, 900 So.2d 734 (Fla. 4th DCA 2005).

You need not allege or present evidence that any identified third person is holding property of the defendant to initiate proceedings supplementary. “The judgment creditor’s entitlement to proceedings supplementary is a separate issue from whether the judgment creditor complied with §56.29(2)’s procedure for impleading third parties into the proceedings.” Longo v. Associated Limousine Servs., So.3d , 43 FLW D219; 2018 Fla. App. LEXIS 908 at ** 7-8 (Fla. 4th DCA 1-2418). In the recent Longo case, the Fourth District reversed the trial judge’s denial of proceedings supplementary, which was mistakenly based on the failure of the plaintiff to submit an affidavit identifying any property held by a third party. The appellate court explained: Under section 56.29(2), the required description of “any property of the judgment debtor … or any property, debt, or other obligation due to the judgment debtor” need not be provided in the initial motion and affidavit, but may instead be provided in a supplemental affidavit.

Moreover, section 56.30 allows for the examination of the judgment debtor to occur before a third party is issued a Notice to Appear. See §56.30, Fla. Stat. (2016). This provision contemplates that proceedings supplementary may be commenced, and discovery may occur, before the impleader of third parties.

In short, because the judgment creditor submitted a motion and affidavit in compliance with section 56.29(1), the trial court erred in denying proceedings supplementary altogether.

Id. at *8.

Thus, where you need discovery to find out where the defendant has transferred its assets, you may initiate proceedings supplementary to conduct discovery by filing a simple motion supported by affidavit that your judgment is still valid and unsatisfied. Such discovery should also seek information about successor entities that may be alter egos of the defendant.

D. Joinder of Third Parties to Proceedings Supplementary

Judges have the power and duty “to bring in and implead third parties wherever it appears relief against them may be warranted.” Richard v.

McNair, 164 So. 836, 840 (Fla. 1935). However, “an order allowing impleader of third parties under §56.29 does no more than allow third parties to be sued and does not determine any substantive rights.” NTS Fort Lauderdale Office Joint Venture v. Serchay, 710 So.2d 1027, 1028 (Fla. 4th DCA 1998). Thus, if you have a judgment that is unsatisfied and you comply with the affidavit requirement to implead a third party, you need not at that stage satisfy the burden of proof you eventually must meet to prevail on the merits against those impleaded defendants. It is more like amending a complaint to bring in a new defendant: the merits of your claim will be decided after the new party answers and discovery is conducted.

Section 56.29(2) governs the process of impleading third parties into proceedings supplementary. That section requires that the plaintiff “describe any property of the judgment debtor not exempt from execution in the hands of any person or any property, debt, or other obligation due to the judgment debtor which may be applied toward the satisfaction of the judgment.” §56.29(2), Fla. Stat. (2016). Any such third party will then be brought into the case by way of a Notice to Appear, rather than a summons. However, the Notice to Appear must be served as original process. It “must describe with reasonable particularity the property, debt, or other obligation that may be available to satisfy the judgment. …” §56.29(2), Fla. Stat. (2016).

“Simply put, the entire statutory scheme … contemplates that the judgment creditor describe ‘any property of the judgment debtor’ or ‘any property, debt, or other obligation due to the judgment debtor’ that may be applied to satisfy the judgment, so as to enable the trial court to issue Notices to Appear that describe the property, debt, or other obligation ‘with reasonable particularity.’” Longo, supra, at *9. This requirement, of course, requires the judgment creditor to conduct sufficient discovery to find funds or other property that can be linked to the judgment debtor, and to identify third parties who may be holding those funds and property.

Once you have complied with the affidavit requirement, the court must issue a Notice to Appear. Section 56.29(1) contains the requirements for such a notice: (1) The Notice to Appear shall direct such person to file an affidavit, as provided in s. 56.16, with the court by a date certain, which date shall not be less than 7 business days from the date of service of the Notice to

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Appear, stating why the property, debt, or other obligation should not be applied to satisfy the judgment. For good cause shown, the court may shorten the time for serving an affidavit. The Notice to Appear must describe with reasonable particularity the property, debt, or other obligation that may be available to satisfy the judgment, must provide such person with the opportunity to present defenses, and must indicate that discovery as provided under the rules of civil procedure is available and that there is a right to a jury trial as provided in s. 56.18.

The Notice to Appear must be served as provided for in chapter 48. A responding affidavit must raise any fact or defense opposing application of the property described in the Notice to Appear to satisfy the judgment, including legal defenses, such as lack of personal jurisdiction. Legal defenses need not be filed under oath but must be served contemporaneously with the affidavit.

The impleaded defendant will then be subject to discovery to permit you to trace the transfers of property to it, or the circumstances surrounding your efforts to pierce the corporate veil and identify it as being the judgment debtor’s alter ego. As addressed below, any property that was owned by, or paid for, the defendant/judgment debtor for up to one year before it was served in the underlying lawsuit is presumptively subject to levy in satisfaction of your judgment.

So, tracing the history of property transfers from the defendant to others is one of the two ways to use proceedings supplementary. The other way is to pierce the corporate veil of related entities that are the defendant’s alter ego.

E. Presumption of Fraudulent Transfers and Remedy

In addition to providing procedures for obtaining discovery in aid of execution and impleading third parties, the Proceedings Supplementary statute shifts the burden of proof onto the impleaded defendant to demonstrate that certain property it allegedly owns is not subject to levy in execution of your client’s judgment against the original defendant. That presumption in essence applies to all property owned by, or paid for by, the judgment debtor within one year before the original lawsuit was filed and served. Section 56.29(3) provides: (a) When, within 1 year before the service of process on the judgment debtor in the original proceeding or action, the judgment debtor has had title to, or paid the purchase price of, any personal property to which the judgment debtor’s spouse, any relative, or any person on confidential terms with the judgment debtor claims title and right of possession, the judgment debtor has the burden of proof to establish that such transfer or gift was not made to delay, hinder, or defraud creditors. (b) When any gift, transfer, assignment or other conveyance of personal property has been made or contrived by

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It is no fun chasing assets in the hands of third parties, but Florida law provides a path to find, and execute on, such property through proceedings supplementary. the judgment debtor to delay, hinder, or defraud creditors, the court shall order the gift, transfer, assignment or other conveyance to be void and direct the sheriff to take the property to satisfy the execution. This does not authorize seizure of property exempted from levy and sale under execution or property which has passed to a bona fide purchaser for value and without notice. Any person aggrieved by the levy or Notice to Appear may proceed under ss. 56.16-56.20.

Id. (emphasis added).

Under that statute, the impleaded defendant may post a bond of double the value of the seized property and obtain return of the property, but that bond should protect the plaintiff if that defendant’s attempt to rebut the presumption of a fraudulent transfer is unsuccessful.

The bottom line is that property bought by or transferred from the defendant for up to one year before your lawsuit is presumptively available for execution and sale to satisfy your judgment.

F. Piercing Corporate Veil to Execute on Property of Alter Ego Entities

The strict statutory language of §56.29(2) does not seem well-suited to the situation of piercing the corporate veil of nominal third parties, which are in actuality the alter ego of the judgment debtor. That is, a third party holding property of an alter ego person or company is not really holding money owed to the judgment debtor, as in the case of a fraudulent transfer. Before the 2016 amendment to §56.29, Florida case law permitted a judgment creditor to implead third parties into proceedings supplementary based on a showing that the third parties were the alter egos of the judgment debtor.

See, e.g., Johnson v. Merry Go Round, Inc., 45 So.2d 181 (Fla. 1950).

In Longo, the Fourth District noted that it had, “applying an earlier version of section 56.29, … explained that ‘a court may fashion an appropriate equitable remedy to afford a judgment creditor as complete relief as possible including finding a new corporation liable for a judgment against its predecessor corporation when the new corporation is merely the alter ego of the predecessor corporation.’”

Longo, supra at *11 (citing Amjad Munim, M.D., P.A. v. Azar, 648 So.2d 145, 150 (Fla. 4th DCA 1994)).

The concept of alter ego or continuation of business “arises where the successor corporation is merely a continuation or reincarnation of the predecessor corporation under a different name.” Id. “The bottom-line question is whether each entity has run its own race, or whether there has been a relay-style passing of the baton from one to the other.” Orlando Light Bulb Serv., Inc. v. Laser Lighting & Elec. Supply, Inc., 523 So.2d 740, 742 n.1 (Fla. 5th DCA 1988) (citation and internal quotation marks omitted).

The Fourth District in Longo provided a roadmap to impleading a putative third party that is actually the alter ego of the judgment debtor to permit you a forum for piercing the corporate veil of that impleaded defendant: In cases where the judgment creditor is seeking to implead a third party on the basis that the third party is the alter ego of the judgment debtor (as opposed to cases where the third party is the recipient of a fraudulent transfer of property), it seems odd to require the judgment creditor to “describe any property of the judgment debtor” or “any property, debt, or other obligation due to the judgment debtor.” A third party’s liability under an alter ego theory is not premised upon a fraudulent transfer of the judgment debtor’s property, but, is instead premised on the notion that the judgment debtor and third party should be treated as the same entity. Still, the description requirement in §56.29(2) is a clear requirement of the statute, and the judgment debtor failed to satisfy that requirement in this case. *** Furthermore, to provide clarity on remand, we conclude that in cases alleging alter ego liability, the description requirement of §56.29(2) is satisfied if the judgment creditor describes any property of an alter ego of the judgment debtor not exempt from execution in the hands of any person, or any property, debt, or other obligation due to an alter ego of the judgment debtor which may be applied toward the satisfaction of the judgment.

owned by your defendant. It will be sufficient to allege that it is owned by an alter ego entity.

G. Conclusion

Of course, we all wish that our clients’ claims will be covered by sufficient liability insurance from reputable and solvent insurers, but it does not always happen that way. It is no fun chasing assets in the hands of third parties, but Florida law provides a path to find, and execute on, such property through proceedings supplementary. Good luck in using this procedure the next time you recover a significant judgment that is over and above available policy limits.

CIVIL PROCEDURE CASE SUMMARIES Twenty-Year Deadline on Discovery in Aid of Execution. Rejecting the argument that discovery proceedings to collect on a judgment were governed by the statute of limitations in §95.11(2)(a), Fla. Stat. (which provides for a five year limitations period), the Supreme Court of Florida has held that discovery in aid of execution does not constitute “an action on a judgment” but constitute proceedings which are part of the main action that led to the judgment. In Salinas v. Ramsey, No. SC17-823; 2018 Fla. LEXIS 182 (Fla. 1-25-18), the court held that the period in which discovery in aid of execution or enforcement of a judgment extends is the same as the life of the judgment itself. “Florida judgments have a twenty-year ‘life’ during which they are enforceable.” Id. at *9. Therefore, “all post-judgment discovery efforts aimed at collecting such a judgment must occur — and may be compelled — within twenty years of entry of the judgment.” Id.

Contrary to the impleader defendants’ suggestion, the judgment creditor’s affidavit does not need to identify property that had been transferred to the impleader defendants. Because a judgment debtor and an alter ego are treated as the same entity, we find that section 56.29(2)’s required description of “any property of the judgment debtor … or any property, debt, or other obligation due to the judgment debtor” may include property of an alleged alter ego of the judgment debtor. Cf. In re Am. Int’l Refinery, 402 B.R. 728, 744-45 (Bankr. W.D. La. 2008) (because the law deems a corporation and its alter ego to be a single entity, a debtor corporation has an equitable interest in the assets of its alter ego).

Surveillance Videos Not Discoverable. Although the defendant in a personal injury case identified and planned to use in evidence at trial a 2014 surveillance video of the plaintiff, the trial court erroneously compelled defendant to produce a 2016 surveillance video it had taken but did not plan to introduce into evidence. In Hunt v. Lightfoot, No. 1D17-3938; 2018 Fla. App. LEXIS 2047 (Fla. 1st DCA 2-9-18), the court on certiorari review quashed the trial court’s order compelling discovery of the 2016 surveillance video. The court rejected the argument that the “rule of completeness” mandated production of the work product “because the videos at issue in this case do not depict a continuous period of surveillance such that the principles of fairness and completeness require the production of the later video in conjunction with the earlier video.” Id. at *5. Nor did the court accept the argument that the defendant had waived work product objection to the 2016 video by the production of the 2014 video it planned to use at trial. Taken to its logical end, the argument that all attorney work product on a particular subject is discoverable if any evidence on that subject is presented at trial, the court held that “if an attorney consulted with an expert on a particular issue in preparing for trial but elected to use a different expert on the issue at trial, then the opposing party would have the right to discover the facts known to both experts.” Id. at *6.

Longo, supra, at ** 11-13. Thus, you do not need to engage in the legal fiction that a closely related company is holding property

Suits Filed by Dead Plaintiffs Properly Dismissed With Prejudice. In affirming the dismissal without leave to amend of lawsuits www.FloridaJusticeAssociation.org | March/April 2018 | 49

CIVILPROCEDURE

filed ostensibly on behalf of plaintiffs who had died before the cases were filed, the court held that such complaints were a nullity because the death of the client terminated any attorney-client relationship and rendered ineffective any action taken on behalf of the former clients. In In Re 73 Engle-Related Cases, No. 1D16-2651; 2018 Fla. App. LEXIS 1819 (Fla. 1st DCA 2-8-18), the court held that “[t]he lawsuits filed here were nullities because a dead person cannot file and maintain a lawsuit,” while recognizing that “[i]t would be a different case if plaintiff’s counsel, instead of naming dead persons as plaintiffs to personal injury actions, had merely misnamed personal representatives within a wrongful death complaint.” Id. at *6 (citing Estate of Eisen v. Philip Morris USA, Inc., 126 So.3d 323 (Fla. 3rd DCA 2013)).

Attorneys’ Fees Denied for Proving Facts Denied in Request for Admissions. Following a hard-fought trial in which the plaintiff established facts central to the issues in the case that had been denied in responses to requests for admissions, the plaintiffs were awarded almost $1 million in attorneys’ fees and costs based upon Fla. R. Civ. P. 1.380(c).

That rule provides that, “[i]f a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 1.370 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may file a motion for an order requiring the other party to pay

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the requesting party the reasonable expenses incurred in making that proof, which may include attorneys’ fees.” In R.J. Reynolds Tobacco Co. v. Ward, No. 1D15-5765; 2018 Fla. App. LEXIS 1144 (Fla. 1st DCA 1-29-18), the court held that the exception to entitlement to reasonable expenses when there was “good reason for the failure to admit” applied, as here the fact that the request pertained to the central issue in the case established such grounds for avoiding liability for fees. “If otherwise, then ‘where a party denies a request to admit a fact which is the central issue of fact in the case, prevailing party attorneys’ fees would become the rule, rather than the exception.’” Id. at **2-3.

Of course, it is impossible to stay immediately abreast of all the changes in procedural law that affect our practices. All we can do is: Keep Tryin’!

ROY D. WASSON

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

CLOSINGARGUMENTS

BONDING OR CURRYING FAVOR?

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

Trial lawyers seek to develop a connection with the jury, and the process of developing that rapport begins with voir dire. An effective advocate wants the jury to like her (or at least not be put off by the lawyer), to believe her, and to trust her. But, when do counsel’s comments cross the line into irrelevant statements that serve no other purpose than to improperly develop that bond? Counsel should be aware of comments that are likely to cross that line and refrain from making such comments, and counsel should also be attentive to statements from opposing counsel that seek to improperly develop a rapport with the panel.

Closing argument should be “confined to the facts and evidence presented to the jury and all logical deductions from the facts in evidence.”

City of Orlando v. Piniero, 66 So.3d 1064 (Fla. 5th DCA 2011). While attorneys are given wide latitude in closing, statements blatantly seeking to curry favor with the jury are impermissible. Indeed, at one point the Canons of Ethics Governing Attorneys specifically recognized that reality. Canon 23, addressing “relations with the jury,” stated: All attempts to curry favor with juries by fawning, flattery or pretended solicitude for their personal comfort are unprofessional. Suggestions of counsel, looking to the comfort or convenience of jurors, and propositions to dispense with argument, should be made to the Court but out of the jury’s hearing.

In re Canons of Ethics Governing Attorneys, 186 So.2d 509, 510 (Fla. 1966). Note that the Rules of Professional Conduct now contain a much more generic provision under the heading “influencing decision maker.” See R. Regulating Fla. Bar 4-3.5(a).

Though there are no reported cases addressing “pretended solicitude for [the jury’s] personal comfort” or the jury’s “convenience,” one should be aware that comments addressing such matters, if made in front of the jury, are improper.

In Kelley v. Mutnich, 481 So.2d 999 (Fla. 4th DCA 1986), counsel sought to curry favor during closing in perhaps the most obvious way — he told the jury that he liked them. Specifically, he said “he liked the jury when he picked them and he liked them now [during closing].”

Id. at 1000. The court described the comments as “both inaccurate and inappropriate,” and noted that such “attempts to curry favor with members of the jury are unprofessional and should be met by rebuke.”

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While the court also found the comments “unfortunate,” it did not find that they rose to the level of requiring a new trial. Id. at 1001.

In Cummins Alabama, Inc. v. Allbritten, 548 So.2d 258 (Fla. 1st DCA 1989), counsel referenced the individual jurors by name and urged them to identify with his client’s experts. Referring to the complexity of the evidence, counsel stated: Sometimes when I listen to it it puts me to sleep. I understand that, but I saw Mrs. Stiltner watching my diesel engine expert take that pump off, and I saw Mr. Boggess shake that line like I did, and I saw the reverend, Mrs. Smith — Id. at 262. The court characterized the comments an “improper attempt to curry favor with jurors,” though the comments were “not sufficiently prejudicial to constitute harmful error warranting a new trial.” Id. at 263.

Bocher v. Glass, 874 So.2d 701 (Fla. 2nd DCA 2007), is a case that contains numerous examples of improper behavior during closing, including what may be considered an attempt by counsel to ingratiate himself with the jury. During closing argument, counsel “attempted to relate a story about him and his grandfather walking in the Florida woods when he was a child,” and, after objection, then began to tell a story about a hypothetical young boy and his grandfather walking in the woods.

During voir dire, counsel’s attempts to bond with the jury were even more obvious, and the court found that they “could only have been designed to ingratiate himself to the potential jurors and focus their attention on irrelevant matters.” Counsel “identified himself as having a child apparently near the age of the decedent,” and told the jury “he knew all about ‘armchair’ quarterbacks because he used to be a professional football player.” Id. at 702. He further made mention of articles that appeared in a local newspaper involving frivolous lawsuits.

In reversing and remanding for a new trial, the court stated: Perhaps if counsel were given free reign, he or she could build exceptional rapport with jurors, and they, in turn, would find a trial far more entertaining, far more like the

television version of the lawyers’ trade. That, however, is not the function of a jury trial. [J]urors in every civil trial are told by the judge: “In reaching your verdict[s], you are not to be swayed from the performance of your duty by prejudice, sympathy or any other sentiment for or against any party. Your verdict[s] must be based on the evidence that has been received and the law on which I have instructed you.” Fla. Std. Jury Instr. (Civ.) 7.1.

If we are interested in the integrity of the process by which a jury determines disputed facts, including damages in personal injury cases, we must not allow this instruction to become mere window dressing for a procedure that, without proper demarcation by a trial judge, can be steered all too easily into a morass of prejudice, sympathy, bias, and emotion.

Bocher, 874 So.2d at 704-05.

In Muhammad v. Toys R Us, Inc., 668 So.2d 254 (Fla. 1985), counsel during closing argument went into an extensive story about his wife and daughter shopping at Dillard’s in addition to making other improper comments. The court reversed for a new trial, finding that the collective impact of all the comments mandated that outcome, and it specifically noted that “irrelevant familial rhetoric must not be condoned.” Id. at 258.

Among other improper statements, “irrelevant familial rhetoric” was also present in the closing argument referenced in Mercury Ins. Co. v Moreta, 957 So.2d 1242 (Fla. 2d DCA 2007). At one point, counsel discussed a conversation he had with his son about the case, stating: “I have a 14-year-old son, he plays sports, he is an athlete, and if he were here, he’d say, ‘come on, dog, just give it up. Just give it up.’ And they’re not giving it up.” Id. at 1248. The Moreta court found that “it was improper for counsel to tell the jury what his 14-year-old son would have thought about the case.” Id. at 1252. The court went on to state: irrelevant stories and information about counsel’s family have no place in closing argument. … In this case, opposing counsel’s discussion of his son’s hypothetical opinion was nothing more than a transparent attempt to curry favor with the jury and to further prejudice it against Mercury.

Id. at 1252.

A purported discussion with one’s spouse has also been held to cross the line into improper comment. In Metropolitan Dade County v. Cifuentes, 473 So.2d 297, 298 (Fla. 3rd DCA 1985), the court found it improper for counsel to tell the jury that “I know last night I did not sleep. I know that last night was probably the first time in a long time that I told my wife that I loved her. I know that I was in fear last night, not of dying but fear of living if someone I loved died.” The case was reversed and remanded for a new trial.

Although a criminal case, Landry v. State, 620 So.2d 1099 (Fla. 4th DCA 1993), is relevant to the issue. In Landry, the prosecutor referenced his military service in the Persian Gulf during closing argument.

The court noted that while the comment “was not independently reversible error, we think in the context of this case it was an improper attempt to curry favor with the jury, particularly where it is entirely irrelevant to any issue being tried or argued.” Id. at 1102. The comment, when considered with other improper comments, warranted reversal.

Conclusion

Closing argument is supposed to help the jury understand the issues by “applying the evidence to the law applicable to the case.” Murphy v.

International Robotic Systems, Inc., 766 So.2d 1010, 1028 (Fla. 2000).

As seen above, irrelevant stories of interactions with counsel’s family members do not further this end, and despite the broad latitude given in closing, are often improper. Attempts to curry favor with the jury are not allowed, and counsel should take care not to cross the line into “fawning” comments, while also remaining vigilant to object to such comments from opposing counsel.

Currying favor with the jury can be a risky strategy in closing. By the end of the trial, the jurors have probably already sized you up, and transparent attempts to curry favor may be perceived negatively and have an adverse effect. It is natural to be ingratiating, but you must be careful about crossing the line — the cases finding such improprieties harmless were decided prior to the test for harmless error announced in Special v. West Boca Medical Center, 160 So.3d 1251 (Fla. 2014), and appellate courts now may be more likely to find such comments justify reversal of your favorable verdict.

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. Burlington has served as chairman of the FJA Amicus Curiae Committee and is a member of the FJA Board of Directors. Burlington is the recipient of the 2000 S. Victor Tipton Award for achievement in legal writing.

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. 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. Carlyle, along with his wife Shannon, received the 2012 S. Victor Tipton Award for superior achievement in legal writing.

BARBARA GREEN

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

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FJAAPPELLATEPRACTICESECTION

The Difficult Concept of “Suggesting” a Death

by Bard D. Rockenbach For many, the concept of “suggesting” the death of a party is strange and confusing. Something as sure and permanent as death shouldn’t be “suggested.” The definition of “suggest” is “to cause one to think that something exists or is the case,” or “to state something indirectly.”

It conjures up the image of a Shakespearean stage whisper in court, “I heard that the plaintiff might have been involved in a fatal car crash last week.” Yet, unlike a stage whisper, the legal effect of a suggestion of death can be as permanent to your case as the plaintiff’s death itself.

Rule 1.260 is the source of the confusion: (1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on all parties as provided in rule 1.080 and upon persons not parties in the manner provided for the service of a summons.

Unless the motion for substitution is made within 90 days after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion, the action shall be dismissed as to the deceased party.

Rule 1.260 gives rise to many questions, including: Who are the “proper parties” who can be substituted?; who can move for substitution?; and what constitutes a “statement of the fact of death,” often referred to as a suggestion of death?

In two recent decisions, the issue of what type of document qualifies as a “suggestion of death” capable of starting the clock ticking on the dismissal of the plaintiff’s case was discussed. These decisions applied a broad definition, including documents other than a formal “Suggestion of Death” filed with the court.

The Third District reviewed a situation in which the defendant argued that plaintiff’s “Notice of Record Activity,” which was filed to avoid dismissal for lack of prosecution, constituted a suggestion of death because it “contained a statement of the fact of the death” of the plaintiff.

Feller v. R.J. Reynolds Tobacco Co., 3D16-2389, 2018 WL 844125, at *3 (Fla. 3rd DCA Feb. 14, 2018). The trial court dismissed the action because plaintiff’s counsel did not have the personal representative appointed before the 90-day limitation ran. Even though Feller’s widow timely filed a Motion to Substitute Party, which named the person expected to be appointed, the trial court denied the motion because the 54 | March/April 2018 | www.FloridaJusticeAssociation.org

person had not actually been appointed and, as it turned out, was not the eventual personal representative who was appointed. The trial court considered the motion a nullity because it could not be immediately granted and dismissed the action.

On appeal, the Third District first reiterated its prior holding that there is no need for a formal “suggestion of death” to start the time running to substitute a party: “[t]he rule does not spell out any specific requirements for the content of the suggestion of death, and we decline to add requirements that are not stated in the rule.”

Id. at *3 (quoting Vera v. Adeland, 881 So.2d 707, 709 (Fla. 3rd DCA 2004)).

The court went on to explain that all that is required is that “the notice contain sufficient information necessary for any other party to move for substitution.” Feller, 2018 WL 844125 at *3; see also Martin v. Hacsi, 909 So.2d 935, 936 (Fla. 5th DCA 2005) (holding that the suggestion of death need not contain anything other than the fact of death).

The Third District did not decide whether the Notice of Record Activity qualified as a suggestion of death because it found that the Motion to Substitute Party filed just days later simultaneously acted as a suggestion of death to start the time to substitute, and as the motion needed to satisfy Rule 1.260, Florida Rules of Civil Procedure.

As for the dismissal, the Third District agreed with the decisions in Metcalfe v. Lee, 952 So.2d 624, 630 (Fla. 4th DCA 2007) and Eusepi v.

Magruder Eye Institute, 937 So.2d 795, 798 (Fla. 5th DCA 2006) and reversed the trial court’s decision. Citing Metcalfe and Eusepi, the court held that Rule 1.260 does not require the Motion to Substitute to name the actual personal representative, or that the personal representative be appointed within the 90-day period. The only requirement contained in Rule 1.260 is that the Motion to Substitute Party be filed within 90 days of when the death is suggested. By filing the motion, even if it did not name the personal representative, Feller’s widow complied with the rule.

A slightly different situation presented itself in a case decided one month earlier, Blue v. R.J. Reynolds Tobacco Co., 2D16-3007, 2018 WL 472632 (Fla. 2nd DCA 1-19-18). In Blue, the plaintiff died and personal representatives were appointed but not immediately substituted as parties. Two years after the personal representatives were appointed, they stipulated that two of the defendants be dismissed, and in that

document identified themselves as “the Plaintiffs, Yvonne Blue and Deborah Cooper, as Proposed PR[s] for the Estate of Ramona Leonard, deceased.” More than a year later the remaining defendants filed a motion to dismiss, arguing that the stipulation for dismissal was a “suggestion of death” because it stated the fact of death on the record.

Because they were not formally substituted within 90 days, the trial court dismissed the action.

On appeal, the Second District did not consider “the passing reference to Ms. Leonard’s death — which was made within a document that related to a settlement with other defendants — as a suggestion of death as contemplated in rule 1.260(a)(1).” Id. at *2. To qualify as a suggestion of death upon the record contemplated by the rule, the court held the document must be “intended to notify all of the litigants of a party’s death.” Id. The court relied on several federal authorities requiring a formal suggestion and holding that “mere reference to a party’s death” in court proceedings is insufficient to trigger the limitations period.

The primary take-away for trial lawyers from these cases is that it is better to be safe than sorry. If the fact of a plaintiff’s death is indicated in the record in any manner, it would be wise to consider the 90-day window of Rule 1.260 triggered and proceed accordingly by moving for substitution within that time period.

Two other nuances of Rule 1.260 that trial attorneys should keep in mind: The motion to substitute may be filed by any party “or by the successors or representatives of the deceased party.” Plaintiff’s counsel,

surviving spouse or children may file the motion. There is no need to wait to determine who the personal representative will be. Second, pay close attention to the formal requirements of the procedure that must be employed. The motion must be served together with the notice of hearing. In many jurisdictions the court will require the motion be filed before the hearing time can be secured. The motion should be filed, then the hearing time secured, and the motion must then be served with the notice of hearing.

Finally, Rule 1.260 contains a remnant of the old rule structure in that it states the motion and notice of hearing “shall be served on all parties as provided in rule 1.080.” Rule 1.080 no longer controls service of documents, and it now directs parties to Rule 2.516, Florida Rules of Judicial Administration for the proper method of service.

BARD D. ROCKENBACH

is a partner in the West Palm Beach civil appellate law firm of Burlington & Rockenbach. He graduated from the University of Florida in 1984 and from Stetson University College of Law in 1988. He is AV Peer Review Rated by Martindale Hubbell and has been board certified in appellate practice by The Florida Bar since 1995. In addition, he has been repeatedly recognized as one of Florida’s “Legal Elite”

by Florida Trend magazine and as a Florida “Super Lawyer” by Law & Politics Media, Inc. Mr. Rockenbach is also a recipient of the S. Victor Tipton Award, which is awarded by the Florida Justice Association for superior achievement in legal writing.

He is an EAGLE member of the FJA, a member of the Palm Beach County Justice Association and the Palm Beach County Bar Association. Burlington & Rockenbach limits its practice to civil appellate matters related to insurance, tort claims, medical malpractice, commercial and securities issues and family law

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FJAYOUNGLAWYERSSECTION

Representing the Deaf Client: Do You Know What Accommodations to Fight For?

by Alan L. Perez

About 15 percent of American adults report either trouble hearing or complete deafness (37.5 million Americans). Some of us have not had the opportunity to represent, interview, or even interact with a deaf person. There are several significant considerations that come into play when representing a client who is deaf. How do we best prepare to present our client’s case? Perhaps even more importantly, how do we prepare our client to testify in deposition and/or at trial? What accommodations are required when a deaf person testifies? Where should we look for guidance on accommodations?

I’ve come to learn that deaf interpretation is a very unique skill.

Consider that when translating from English to any other language, there generally is a word-to-word translation or perhaps a short series of words in either language that comes fairly close to a word-to-word translation. When translating English to American Sign Language (ASL), or vice versa, the process is drastically different. Some deaf people do not know the sound of any language.

Take a moment and let that sink in. A deaf interpreter is tasked with translating English words into concepts, relaying those concepts using motion, then receiving concepts in return, and finally turning those concepts back into English words for the rest of us.

In the legal setting, where Supreme Court precedent can turn based on the use of a phrase, a single word, or even an Oxford comma, accurate interpretation is critical.

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I was recently presented with this situation in a negligent security case wherein we represent a client who is deaf. The client was the victim of a burglary and rape at an apartment complex, the owners of which terminated third-party security services just before the horrible victimization of my client. Of course, the client’s testimony is of critical importance, and in the process of the client’s deposition being scheduled, I endeavored to make sure that the client’s disability was fully accommodated. To my surprise, I found that while there is some statutory guidance as to general accommodations, there is much left for debate as to the specific accommodations that must be made when a deaf person testifies in a legal setting, whether in deposition or in court. Unsurprisingly, the defense lawyer in the case fought the extent of the accommodations I demanded on behalf of my client. I was forced to engage in a contentious and protracted dispute over the extent of accommodations we demanded be made at the client’s deposition.

Current Law

Naturally, I first turned to the Florida Statutes. Florida Statute §90.6063 codifies the legislature’s recognition that the rights of deaf citizens are to be protected. Appropriate and effective interpreter services are to be made available to Florida’s deaf citizens when a deaf person is a complainant, defendant, witness, or otherwise a party to a legal proceeding. Fla. Stat. §90.6063(1), (2) (2018). This begs the question: What are “appropriate” and “effective” interpreter services?

Florida Statutes §90.6063(3)(b) expressly recognizes that “a qualified interpreter” is: (i) an interpreter “certified” by the National Registry of Interpreters for the Deaf (“RID”) or the Florida Registry of Interpreters for the Deaf (“FRID”); or (ii) an interpreter whose qualifications are otherwise determined by the appointing authority. The RID is a service and national registry that generates testing standards, administers tests, and certifies deaf interpreters.

The RID also develops and issues practical standards, best practice guides, and ethical guidelines that apply to interpreters for the deaf who are registered with the organization.

Subsection (4) of Florida Statutes §90.6063 starts off by stating: “Every deaf person whose appearance before a proceeding entitles him or her to an interpreter shall notify the appointing authority of his or her disability not less than 5 days prior to any appearance and shall request at such time the services of an interpreter.”

Does the Law Require Enough?

At first glance, this statute seems adequate. The law provides that a deaf person only need notify “the appointing authority” (presumably, the Court or counsel) of his or her disability five or more days before the proceeding and AN interpreter — qualified or “certified” — should be provided. However, as I would find out, appropriate and effective interpretation services require much more. The statute, while good as far as it goes, falls surprisingly short of requiring appropriate and effective interpretation services.

Currently, the RID recognizes different levels of deaf interpretation certifications, each of which helps identify the holder’s general proficiency in ASL2: • NIC – National Interpreter Certification • CDI – Certified Deaf Interpreter • Ed:K-12 – Educational Certificate (On moratorium since January 1, 20163) • OTC – Oral Transliteration Certificate (On moratorium since January 1, 2016) • SC: L – Specialist Certificate: Legal (On moratorium since January 1, 2016)

While the RID currently has this certification on “moratorium” – meaning that it currently does not grant this certification — holders of “SC:L” certifications remain designated as such and continue to be RID certified. The RID indicates that this certification is presently a topic of investigation, suggesting that the moratorium on awarding this certification may be lifted. The RID has, in the past, expressly recognized the unique circumstances involved in interpreting for a deaf person in a legal setting, where words, concepts, and details are key. In the early 1990s, the RID issued a Standard Practice Paper (updated in 2007) on interpreting in the legal setting.

The RID recognized that interpreting for deaf persons transcends the courtroom: “Rather, legal interpreting occurs during attorney client conferences, investigations by law enforcement, depositions, witness interviews, real estate settlements, court-ordered treatment and education programs and administrative or legislative hearings. Legal interpreting requires highly skilled and trained specialists because of the significant consequences to the people involved in the event of a failed communication. Deaf people have a legal right to a qualified interpreter, and in legal settings, a qualified legal interpreter will have a specific skill set to ensure that the deaf person’s right to be present and participate is not compromised.” 6

Best Practices

The RID’s best practice requires that at least two sworn “proceedings interpreters” are to work together to interpret in a legal setting.7 Typically, the sworn “proceeding interpreters” work together as a team and switch off interpreting the testimony for the record at routine intervals, usually between 20 and 30 minutes. Interpreting ASL is extremely taxing, mentally and physically, for the interpreters — especially given the severity and sensitivity of legal proceedings like depositions or in-court testimony. This is the reason for the

Of particular interest, at least for those of us in the legal setting, is the “SC:L” certification. The RID developed this specific credentialing designation to identify the minimum levels of competency to interpret in a legal setting. Being a “Certified Deaf Interpreter” is a tremendous accomplishment and people who hold this certification should be lauded for their service to this generally underserved community. However, while a Certified Deaf Interpreter (which is what §90.6063(3)(b) requires) has demonstrated an understanding of interpreting and deafness, an interpreter who holds a “Specialty Certificate: Legal” or “SC:L” certification has met specific criteria regarding certification, education, and experience in legal settings.4 The RID describes this certification as follows: “Holders of this specialist certification demonstrated specialized knowledge of legal settings and greater familiarity with language used in the legal system. These individuals are recommended for a broad range of assignments in the legal setting.” 5 www.FloridaJusticeAssociation.org | March/April 2018 | 59

FJAYOUNGLAWYERSSECTION

“teaming” approach to interpreting in legal settings. If one of the parties is deaf, a third interpreter should be retained by that party to sit with counsel as a member of the litigation team, not only to interpret privileged communications between counsel and the client, but also to monitor the two “proceedings interpreters” for accuracy. Having a third interpreter with counsel allows counsel to make timely objections based on what is being interpreted and potentially preserve error based on interpretation for appeal.8 The RID long ago recognized the unique circumstances surrounding interpreting for deaf persons in legal proceedings and has issued basic, well-founded, and reasoned standards which should be in effect for all litigants, witnesses, and participants.

Notifying the opposing party in litigation, or the court, at least five days in advance and hoping that a single certified interpreter is provided seems to fall short of what is considered appropriate and effective interpretation services. How do we ensure that our client, a witness, or participant, is afforded appropriate and effective interpretation services as required by Florida law? What accommodations should we, as advocates, demand for our deaf clients? I can only offer the following suggestions: 1. Demand that whenever your client is going to be deposed, or will be in court, there be at least two “proceedings interpreters,” who hold “SC:L” certifications (use the Standard Practice Papers referenced in this article to explain “SC:L” certification and “teaming”); 2. Consider qualifying the two proceedings interpreters (especially if either or both are not “SC:L” certificate holders) by asking a series of questions on the record. I suggest something like the following: a. Please state your full name and address. b. By whom are you presently employed and what are your job duties? c. Provide a summary of your professional qualifications (e.g. educational background, years of experience, specializations, professional achievements). d. Are you an RID-certified interpreter? If so, what certificate(s) do you hold? e. Describe the examination process that leads to RID certification. f. Are there multiple certification systems for interpreters?

How do these systems differ from each other? g. What is the nature of continuing education that you are required to participate in? h. Define the term “qualified interpreter.” How does your definition compare and differ from the definition of qualified interpreter under the Americans with Disabilities Act (ADA)? i. What is the difference between a signer and an interpreter? j. At what point does signing and communicating with a deaf person become interpreting for a deaf person? k. Do people work as interpreters who have not been formally trained as interpreters or who do not possess certification?

Why or why not? What percent of the interpreting work60 | March/April 2018 | www.FloridaJusticeAssociation.org

force would you estimate fall into the category of untrained and/or uncertified? l. Describe the interpreting process and what distinguishes it from the process of signing. m. Define American Sign Language. n. Does American Sign Language involve the use of spoken English words being conveyed by mouthing of the words simultaneously with the signs? If so, what is the role of English words as part of American Sign Language? o. Do deaf people speech-read? Is speech-reading a reliable way of communicating with deaf individuals? Why or why not? p. Are there other sign languages that are used in the United States? How do they differ from American Sign Language?

When would one system or language be used over another and why? q. What is the difference between interpreting and transliteration? When would one be used versus the other? r. Can you explain to the court why there will be a team of interpreters working in this matter? What techniques will you be employing as team interpreters that are different than when only one interpreter is working? How will this impact on the trial process? s. What is a relay interpreter and why is it necessary to use a relay interpreter in this matter? t. Have you interpreted in court proceedings before? If so, what types of matters and how frequently? u. Have you met the defendant or witness in this matter?

Were you able to establish communication? If so, how do you know? What techniques did you use during your discussion with the defendant and/or witness?9 3. Hire an interpreter who holds an “SC:L” (if possible) to interpret attorney/client communications and to monitor the two “proceedings interpreters” for potential objections to the interpreting (note that this interpreter would be conflicted from serving as a “proceedings interpreter” later on because of the privileged nature of their interpreting for you and your client);

4. Consider video recording the deposition — with two cameras — one recording your client’s (or the witness’) signing and one recording what the interpreters are signing and interpreting. This would provide documentation of the signing/interpreting for further interpretation later, in the event the interpreters’ ASL interpretation is challenged.

These are considerations that I believe should be at the forefront of our minds when we find ourselves advocating for the rights of a deaf person, who has every bit as much right to access to the courts and legal system as any other American. Most of the lawyers and judges with whom I speak about this have little or no awareness about these considerations. It is my hope in writing this to raise awareness about these issues and provide assistance or guidance to my fellow advocates when you find yourself representing a client who is deaf, or encounter a witness or other participant who is deaf and needs accommodation.10,11 Blackwell DL, Lucas JW, Clarke TC. Summary health statistics for U.S. adults: National Health Interview Survey, 2012 (PDF). National Center for Health Statistics. Vital Health Stat 10(260). 2014.

2. https://www.rid.org/rid-certification-overview/Registry of Interpreters for the Deaf, last accessed February 24, 2018 3.

Certain certifications are on “moratorium” and are not being awarded to persons who would currently seek to attain these certifications, subject to the RID’s recognizing test and certifications of other entities; however, individuals who already possess these certifications will continue to be RID certified.

4.

See the Standard Practice Paper; “Interpreting in Legal Settings” issued by the RID, Professional Standards Committee, 1993-1995, Rev. 5/00, Updated, 2007.

5. https://www.rid.org/rid-certification-overview/certifications-under-moratorium/ Registry of Interpreters for the Deaf, last accessed February 24, 2018 6.

See the Standard Practice Paper; “Interpreting in Legal Settings” issued by the RID, Professional Standards Committee, 1993-1995, Rev. 5/00, Updated, 2007.

7.

See the Standard Practice Paper; “Team Interpreting” issued by the RID, Professional Standards Committee, 1993-1995, Rev. 8/97, Updated, 2007.

8.

See the Standard Practice Paper; “Interpreting in Legal Settings” issued by the RID, Professional Standards Committee, 1993-1995, Rev. 5/00, Updated, 2007.

9.

I was provided with this list of qualifying questions by a friendly ASL interpreter.

10.

The importance of accurate interpretation came to mind (especially given my experience with my deaf client) in hurricane season of 2017 during hurricane Irma warnings in Manatee County (where I live and one of the counties in which I routinely practice) which became the subject of national media attention because the ASL interpreter used by the county Emergency Operations Center, in their televised warnings to the public, began signing what amounted to gibberish about pizza, bears, dogs, and cats. This event prompted Florida Representative Richard Stark (D., Dist. 104, Weston) to sponsor HB 1109 this legislative session; the bill would require that the Florida Division of Emergency Management use only a “qualified interpreter” who is certified by the National Registry of Interpreters for the Deaf (RID) or the Florida Registry of Interpreters for the Deaf (FRID). The bill, as of the writing of this article, has advanced to the House Appropriations Committee.

11.

Special thanks to my wife, Jennifer, who assisted me greatly in preparing this article and is my support and foundation.

1.

ALAN L. PEREZ

is a trial attorney at the Mallard Law Firm in Sarasota, Florida, who represents plaintiffs in serious personal injury matters, including auto/trucking collisions, nursing home/ALF negligence, slip and falls, wrongful death, premises liability, and sexual abuse cases. Alan is an active member of the FJA Young Lawyers Section Board of Directors.

CLE CALENDAR

2018 MONTHLY HIGHLIGHTS APRIL

April 5 Annual Review Webinar

May 10 Boot Camp Webinar 9: Case Closing & Lien Resolution

April 10 Boot Camp Webinar 1: Intake & Sign Up

May 15 Boot Camp Webinar 10: Nuts & Bolts of Civil Procedure

April 12 Boot Camp Webinar 2: Documents & Evidence Gathering

May 17 Medical School for PI Lawyers (Orlando)

April 17 Boot Camp Webinar 3: Demand Packages & Insurance Adjusters April 19 Boot Camp Webinar 4: Time to File Suit April 24 Boot Camp Webinar 5: Discovery – How Much & When April 27 Collateral Sources Webinar

MAY

May 1 Boot Camp Webinar 6: Depositions – Getting Your Client Ready & Getting Ready for Theirs May 3 Boot Camp Webinar 7: Mediation & Settlements

May 18 Boot Camp Webinar 11: Business & Marketing of Law Practice May 22 Boot Camp Webinar 12: Professionalism, Reputation, & Credibility

JUNE

June 19-23 Annual Convention & Expo The Breakers Palm Beach

AUGUST

August 1-3 Christian D. Searcy Voir Dire Institute Walt Disney World Swan and Dolphin August 2-4 Al J. Cone Trial Advocacy Institute Walt Disney World Swan and Dolphin

May 8 Boot Camp Webinar 8: Trial

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MEMBEROUTREACH

FJA Members Hit the Slopes at

Young Lawyer Ski Seminar The highly rated FJA Ski Seminar came back this year under the volunteer-led leadership of FJA Board of Directors member Dan Vazquez. Promoted as a seminar for young lawyers, attorneys from varying levels of experience were represented in this sold-out program. The education covered introductory-level but valuable topics including premises liability, workers’ compensation, human factors, insurance bad faith, and more. Sandwiched between morning and afternoon seminar sessions, participants enjoyed skiing and snowboarding on the best snowfall Utah has seen this season. This was a great event for high-quality education, networking, and camaraderie among our FJA membership. Another ski seminar is slated to take place in 2019, so stay tuned for more details.

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FJA Leaders Share Legislative Updates in Jacksonville

FJA Executive Director Paul Jess and other leaders participated as special guests at the Jacksonville Justice Association (JJA) Quarterly Meeting to deliver a brief legislative update.

70 FJA Members Join Volunteer Lobbying Efforts

Each year, the FJA will move bills of varying impact through the legislative process, but one of the most valuable impacts made on our legislative bodies will be the one-on-one meetings between FJA members and elected officials. FJA members share the stories of how proposed legislation impacts their clients and lawmakers’ constituents every day. With that, we extend a sincere appreciation to the many FJA members who joined us in Tallahassee this year:

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President Dale Swope, President-Elect Trey Lytal, Treasurer Leslie Mitchell Kroeger, Secretary Eric Romano, Immediate Past President Jimmy Gustafson, Past Presidents Paul Anderson, Todd Copeland, Richard Newsome, John Romano and Richard Slawson; Executive Committee Members Laurie Briggs, Tiffany Faddis and Chris Ligori.

Members: Mercy Almagur, Barry Ansbacher, Cory Baird, Vanessa Brice, Janette Carey, Matt Carrillo, Richard Chait, Clif Curry, Shannon del Prado, David Dismuke, Jordan Dulcie, Amanda Dunn, Rosemary Eure, Marcus Fernandez, Beth Finizio, Matt Foster, Brenda Fulmer, Alex Gillen, Danny Greene, Jim Guarnieri, Nicholas Gurney, Scott Gwartney, Lisa Haba, Amber Hall, David Heil, Kimmy Hogan, Peter Hunt, Lee Jacobson, Jeremiah Jespon, Heather Jones, Jason Lamoureux, Dean LeBoeuf, Jim Magazine, Damian Mallard, Ricardo Martinez-Cid, Patrick McArdle, Chip Merlin, Dan Mowrey, Jason Mulholland, Alan Perez, Skip Pita, Pete Plascencia, Matthew Posgay, Chris Smith, Kerri Smith, Brent Steinberg, Brian Sutter, Kim Syfrett, Waylon Thompson, Mark Touby, Dan Vazquez, Jim Vickaryous, Kim Wald, Steve Watrel, Nicole Whitaker, Ben Whitman and Mel Wright.

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4 And, thank you to all the members who assisted our lobbying efforts in other ways! There are so many who participated in conference calls, bill analysis, amendment drafting, position paper writing, key contact communication, lunch sponsorships, and more. It is truly a team effort and your FJA Legislative Team thanks you!

Pictured above: 1. Group shot! Geared up and ready to enjoy great weather and ski conditions at the Park City Resort 2. FJA Young Lawyers Section members at the Historic Florida Capitol 3. FJA Young Lawyers Section members meeting with Sen. Darryl Rouson 4. FJA Women’s Caucus Section meets with House Minority Leader Cruz

MEMBERSPOTLIGHT

MEMBERS IN ACTION

Steve Watrel The Legislative Session is a critical time for the Florida Justice Association. This year, session began January 9 and will last through March 9. FJA members from throughout Florida volunteer their time by coming to Tallahassee and spend days, weeks, and sometimes months to protect and further our civil justice initiatives. Below is an inspiring Q&A with FJA EAGLE Member Steve Watrel, who is a champion for elders and nursing home residents in Florida.

Q: Why are you so passionate about nursing home issues?

A: For me it’s a very personal issue. Both my grandmother and father died due to nursing home neglect.

When you witness the results of poor care and neglect, it really hits you hard. Then, you realize that as a trial lawyer you have the ability to create change, both professionally and legislatively through the FJA and its lobby team.

Q: What is the toughest hurdle to overcome when defending the elderly?

A: Our society just doesn’t value the elderly — plain and simple.

If you have a child in daycare, every facility has a camera. The same even goes for kennels. What would you have to hide?

Try substituting the word “child” for “elderly” in any legislation.

The remedies would be better immediately. If children were left in a facility without air conditioning for four days, everybody involved would be sitting in prison right now. It should be the same, but it’s not.

When people get older, they become a burden. We put them in a facility and we forget about them.

Q: What keeps you motivated in the legislative process when you’re outnumbered?

A: In 2014, the FJA was able to pass a compromise bill, which provided an exclusive remedy for residents in nursing homes who alleged negligence or a violation of their rights. This compromise shows the difference a few lawyers can make for millions of seniors in our state.

Seniors are a vulnerable population and I’m driven to protect them.

With each senior I protect from abuse and neglect, and every family I bring justice to, I am motivated to continue fighting.

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Steve Watrel (right) participates in a legislative strategy session with FJA lobbyist Janet Mabry and other FJA legislative staff.

This is my purpose in my career and life. This is what I feel like I’m here to do. On the late nights of preparing for a trial or reading newly filed amendments, this purpose keeps me up working until 4 a.m.

Q: Why is it important for FJA trial attorneys to be involved in the legislative process?

A: As with other areas of practice, the viewpoint of our vulnerable or injured clients — such as the nursing home residents — is rarely considered as part of the regulatory process. The nursing home industry’s voice is virtually the only one heard in the courtroom. The residents and their families are outnumbered and underrepresented.

So we as trial lawyers are really the only voice for our clients, the nursing home residents and their families. If we don’t step up to the plate, who will?

Q: What advice would you give to someone who has never been up to Tallahassee to lobby?

A: I started lobbying in Tallahassee in the early ’90s when I first became a member of the FJA. At first it was a humbling experience because I didn’t know what I was doing. But, more experienced attorneys showed me the ropes and I picked up on it. When you are working on the legislation, you’re part of our team. You’re never alone.

Every FJA member has valuable knowledge to share with the lawmakers who have the power to change the policy for the citizens of our state. You may think that you won’t make a difference, but you will.

Felipe S. Blanco Senior Vice President Senior Financial Advisor 8840 SW 136th Street Miami, FL 33176 8840 SW 136th Street Miami, FL 33176 T 305.252.5673 T 800.937.0334 F 305.508.5536 felipe.blanco@ml.com

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EAGLESPOTLIGHT

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

BENEFACTOR – $10,000

Paul P. Terry, Jr.

Paul D. Jess

Recruited by Barry B. Ansbacher

PATRON – $5,000

Jeffrey M. Fenster Upgraded

Maryann M. Furman

Recruited by James W. Guarnieri, Jr.

68 | March/April 2018 | www.FloridaJusticeAssociation.org

Andrew F. Knopf

Upgraded by Brent Bigger

Woodburn S. Wesley

SPONSOR – $3,000 Courtney Brewer Upgraded by John S. Mills

Thomas D. Hall Recruited by John S. Mills

Robert E. Price Recruited by Troy Rafferty

John Vallas Colvin Recruited by Nathan P. Carter

Andrew D. Manko Upgraded by John S. Mills

John Wellington Wesley Upgraded

Kim Michael Cullen Recruited by Nathan P. Carter

Michael Vincent McGrail Upgraded

ASSOCIATE – $1,500 Megan Louise Cummings Recruited by Maryann M. Furman Jonathan E. Freidin Recruited by Philip Freidin Jessie Leigh Harrell Recruited by Stephen Watrel Daniel Carl Jensen Recruited by Lake H. Lytal, III

BFE LEGACY – $40,000

Christopher L. Madden

T. Shane Rowe Recruited by Warren R. Todd

Ellen S. Morris Recruited by Howard S. Krooks Carrie Lambeth Pilon Recruited by David Corey Dismuke Chad Mitchell Pilon Recruited by David Corey Dismuke

Gregory A. Thacker Recruited by Maryann M. Furman David A. Wolf Recruited by Eric Romano

BFE BENEFACTOR – $10,000 Felipe Blanco Recruited by Todd Jordan Michaels

Upgraded by Dale M. Swope

BFE PATRON – $5,000

BFE SPONSOR– $3,000

Recruited by Thomas W. Carey

Recruited by Christopher Ligori www.FloridaJusticeAssociation.org | March/April 2018 | 69

EAGLESPOTLIGHT

2017 - 2018 EAGLE RECRUITING CHAMPIONS Recruiter Name

Recruiting Value

# of Recruits

Since May 10, 2017

Recruiter Name

Recruiting Value

# of Recruits

Dale M. Swope

$77,000

1

Paul M. Anderson

$5,000

1

Lake H. Lytal, III

$46,250

4

Carter Scott

$5,000

1

Matthew K. Foster

$38,500

10

Jonathan T. Gilbert

$4,500

3

Curry G. Pajcic

$29,500

10

James R. Holland, II

$4,500

3

Damian B. Mallard

$28,000

13

J. Alistair McKenzie

$4,500

1

Christopher Ligori

$27,000

9

Stephen Watrel

$3,500

1

James W. Gustafson, Jr.

$23,000

3

Laurie J. Briggs

$3,000

2

Richard E. Chait

$17,000

7

Howard C. Coker

$3,000

1

Thomas W. Carey

$15,000

9

Sean C. Domnick

$3,000

1

James W. Guarnieri, Jr.

$14,500

5

Vivian H. Fazio

$3,000

1

Nathan P. Carter

$13,500

5

Maryann M. Furman

$3,000

2

Todd Jordan Michaels

$13,000

2

Bernard F. Walsh

$3,000

2

Matthew Nichols Posgay

$13,000

2

Ben J. Whitman

$3,000

1

Hendrik Uiterwyk

$13,000

4

David J. Zappitell

$3,000

2

Fred A. Cunningham

$12,500

3

Joseph N. Nusbaum

$2,700

2

Tiffany M. Faddis

$12,500

3

Virginia M. Buchanan

$2,500

1

Barry B. Ansbacher

$12,000

1

Waylon Thompson

$2,500

1

Eric Romano

$11,500

3

Michael Brevda

$1,500

1

Gregory M. Yaffa

$11,000

4

Marci Ball Elordi

$1,500

1

Fermin Lopez

$9,500

4

Philip Freidin

$1,500

1

Peter Hunt

$9,250

5

Philip A. Gold

$1,500

1

Hubert R. Brown

$9,000

3

Adriana Gonzalez

$1,500

1

David Corey Dismuke

$9,000

4

Celene Humphries

$1,500

1

Cassidy Perdue

$9,000

6

Christopher P. Janes

$1,500

1

Troy Rafferty

$9,000

5

Paul D. Jess

$1,500

1

Robert Mayer Rubenstein

$8,500

1

Howard S. Krooks

$1,500

1

James Lawrence Magazine

$8,000

2

Jason F. Lamoureux

$1,500

1

H. L. (Larry) Perry

$7,000

3

Skip Pita

$1,500

1

Vanessa Brice

$6,000

2

Kimberly J. Syfrett

$1,500

1

John S. Mills

$6,000

1

Warren R. Todd

$1,500

1

Anthony Quackenbush

$6,000

3

James G. Vickaryous

$1,500

1

Brenda S. Fulmer

$5,500

1

as of 3/14/2018

70 | March/April 2018 | www.FloridaJusticeAssociation.org

Index Attorneys discipline; disbarment for providing clients with legally meaningless certifications purportedly authorizing them to grow and use marijuana for medical purposes…20 discipline; disbarment for escalating pattern of egregious misconduct toward other attorneys and disruptive behavior in court…20 Attorneys, fees charging liens; claimed fees lost where lien not perfected prior to dismissal…22 contingent fee multiplier; award reversed where order did not contain specific findings and there was no transcript of fee hearing…24 proposal for settlement; proposal not subject to Rule 2.516 service requirements; conflict certified…21 Rule 1.380(c); award for proving facts denied in request for admissions denied where request pertaining to central issue in case constituted “good reason”…50 Auto UM coverage must be reciprocal of BI coverage, regardless of what policy says…28 UM; consent per §627.727(9) applies to all UM policies, including specialty policies covering collector vehicles…28 Closing Argument statements designed to curry favor with jury; risky strategy that may result in reversal…52 Damages additur; error not to grant additur or new trial where permanent injury and large award for past medical expenses…22

claim for future loss of earning capacity not supported by fear of job loss; attorney chastised for improper attack on defense expert…21 collateral sources; error to condition set-off on evidence matching Social Security disability payments with award of lost wages…23,26

future economic; testimony on past expenditures not competent substantial evidence of expenses reasonably certain to be incurred…23 future medical expenses; recent cases denying awards and tips for getting and keeping awards… 29 future medical expenses; testimony that future treatment might be needed is insufficient to support an award…23

noneconomic; where past and future medical expenses, but no noneconomics, were awarded, additur granted only for undisputed existence of past pain…24 Evidence agreements; when terms of agreement are at issue, failure to introduce agreement and modifications violates best evidence rule…43

Daubert; exclusion of IME option affirmed based on unwarranted inferences and assumptions re pre-existing condition…42 Daubert; pretrial challenge, if deferred until trial, requires contemporaneous objection at trial…42 experts; opinion that amounts to conclusion of law is inadmissible…43

family medicine expert; testimony based on medical record review lacked sufficient weight to present to jury…42 hearsay; business records exception; once foundation is laid, admission may be precluded by showing them to be untrustworthy…43 hearsay; business records exception; witness need not be employed by the business but must be familiar with business and how documents produced…42 hearsay; declarant who invokes 5th Amendment right to silence is “unavailable”…43 hearsay; testimony concerning business records not admitted into evidence is inadmissible…43 impeachment; general practice tips…43 surveillance videos; intention to use 2014 video at trial did not make 2016 video discoverable where no continuous period of surveillance…49 FJA 2018 Annual Convention; program and other information… 14 Research and Education Foundation; goals and future plans…12 Insurance bad faith; 11th Cir. holds statute of limitations is five years…28

bad faith; abatement of third-party claim improper per nonjoinder statute when plaintiff had not already obtained settlement or verdict…34

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Index civil remedy notice; insured not obligated to wait until appraisal process completed before filing…33

PIP; question certified recalculation of benefits due after application of the deductible…24,33 settlement check; inclusion of hospital on check not deemed a counteroffer where insured did not specify type of payee in demand…32 Judgments collecting; discussion and practice guide to proceedings supplementary…46 discovery in aid of execution; 20-year deadline applies…49 Jurors new trial; defendant prohibited from questioning admittedly biased venire members who were going to be dismissed for cause…28

Negligence duty of care; person who petitions government for a road improvement outside his property has no duty to someone injured by condition it creates…21 Parties death; practice tips re “suggesting death” of a litigant…54 Practice Tips deaf clients; understanding and securing the client’s special needs in deposition and trial...58 Premises Liability asbestos exposure; insufficient evidence that contractor providing services at power plant had control of property where exposure occurred…21 Privilege attorney-client; Supreme Court adopts as procedural 2011 statute eliminating the common law fiduciary exception…42

Jury Instructions amendments; instructions relating to burden of proof, legal causation and comparative fault…20

attorney-client; unlike work-product, it is not concerned with the litigation needs of the opposing party…43

Legislature 2018 Session ends; election and 2019 Session dates…16

Products Liability Goodyear RV tires; protective order abuse is resulting in deaths and injuries; practice tips...38

Litigation Privilege malicious prosecution; inapplicability of privilege applies to original actions as well as to adding and dropping parties…23

tobacco; 73 Engle cases filed on behalf of dead people properly dismissed with no chance to amend…24, 50

Maritime Law venue; federal admiralty subject matter jurisdiction met by cruise ship passenger injured in the terminal on the way to embark on ship…22 Medicaid liens on recovery…36 lien; error for ALJ to disregard prehearing stipulation that parties could collectively challenge the lien amount…23

liens; legislation; federal legislation retroactively repealed Oct. 2017 legislation allowing lien on any portion of settlement…27 Medical Malpractice expert testimony, basis…37 hospital liability, pleading…36 nondelegable duty…36

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Proposal for Settlement federal diversity cases; 11th Cir. holds Fla. law re 90-day waiting period applies…29 Sanctions attorney misconduct; award of attorney’s fees requires factual findings and express finding of bad faith…21 fraud on the court; dismissal proper where surveillance video contradicted plaintiff ’s deposition testimony about effects of injury…21 Sovereign Immunity limited waiver is inapplicable to deceptive and unfair trade practices claims arising under FDUTPA…22 Workers’ Compensation law enforcement officers; statutory presumption re heart disease inapplicable where 21 months elapsed between physical and hire date…23

Advertisers Index ADR SERVICES Upchurch, Watson, White & Max.......................inside back cover ATTORNEY ADVERTISING Cohen Milstein Sellers & Toll PLLC ......................................... 19 Coker, Schickel, Sorenson, Posgay & Iracki, P.A........................... 3 Craig Goldenfarb P.A................................................................. 11 Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. ............................................................. 55 The Liquor Law Center.............................................................. 57 Steve Watrel, P.A........................................................................ 65 Terrell Hogan............................................................................. 63 The Truck Accident Law Firm.................................................... 35 BANKING Esquire Bank.............................................................................. 66 Sabadell United Bank/Iberiabank............................................... 25 CONSULTING AND PROFESSIONAL SERVICES The Centers................................................................................ 67 Tanner Legal Nurse Consulting........................... inside front cover COURT REPORTING SERVICES Milestone Reporting Company.................................................. 73 Universal Court Reporting......................................................... 56 EDUCATION Stetson University College of Law.............................................. 10 ENGINEERING SERVICES BEC Consulting......................................................................... 50 EXPERT WITNESSES Physician Life Care Planning...................................................... 51 Robson Forensic......................................................................... 67 The TASA Group....................................................................... 31 FINANCIAL ADVISING Felipe Blanco.............................................................................. 66 LITIGATION FUNDING Client Legal Funding................................................................. 45 Fast Funds, Inc........................................................................... 13 MARKETING Rieback & David....................................................................... 74 SETTLEMENT SERVICES NFP Structured Settlements......................................................... 7 VIDEO PRODUCTION Image Resources, Inc.................................................................... 4 Video Law Services....................................................................... 9

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PRSRT STD U.S. Postage PAID Montezuma, IA Permit #30

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FLORIDA FLORIDA JUSTICE ASSOCIATION JUSTICE

P A Monroe C 218 South Street Tallahassee, Florida 32301 (850) 224-9403 March/April 2018 Change Service Requested

I AM EAGLE

‘‘

‘‘

The Florida Justice Association stands in the breach, protecting the rights of everyday citizens and maintaining a civil justice system that provides actual justice.

Jimmy Gustafson, Searcy Denney Scarola Barnhart & Shipley PA

Lobbyists for big business and big insurance corporations attempt to force tort reform bills through the Legislature that would destroy the civil justice system and take away the ability of everyday citizens to hold them accountable under the law. Each year, the Florida Justice Association stands in the breach, protecting the rights of everyday citizens and maintaining a civil justice system that provides actual justice. EAGLE makes that possible. Support EAGLE, and the Florida Justice Association will continue to protect a civil justice system that works for all.

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

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