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The 'Five Million Dollar Ant Bite Case' Goes to Appeals Court ... as the Legal World Watches

February 27, 2018 - 2:15pm

1st DCA  First District Court of Appeal

A Hamilton County jury verdict that has drawn the attention of national legal scholars and civil justice reform advocates goes before the First District Court of Appeal in Tallahassee next week.

If ever a case had Florida set up to repeat in 2018 as the No. 1 lawsuit-happy state -- the nation's top "Judicial Hellhole" -- it's probably going to be this one, Simon's Trucking, Inc. (Apellant/Defendant) v.  Charles A. Lieupo (Appellee/Plaintiff). 

The case arises out of a 2011 semi tractor-trailer accident on Interstate 75. The driver of the semi suffered a massive heart attack and died, causing the vehicle to veer off the Interstate and crash into the trees. But the lawsuit doesn't involve the deceased truck driver. 

The plaintiff in the lawsuit was a tow truck driver, Charles Lieupo, who heard about the accident on a dispatch radio and asked to be hired to remove the wreckage. 

After first responders cleared the accident scene of any hazardous materials, Lieupo and others were allowed to remove the tractor-trailer. At the time, Lieupo told friends he had been bitten by fire ants on his legs while at the scene.   

Over the next two months, medical records show Lieupo told physicians and other healthcare providers he had been bitten by fire ants. Six months after the accident, Lieupo told his pain-management doctor, “I had ants all over myself ... [T]hey were in my breeches and ... they were stinging.”  But at trial, his story changed dramatically.

Lieupo told a Hamilton County jury that sulfuric battery acid at the accident scene, not ant bites, had injured his legs. A medical specialist disagreed and testified at trial that Lieupo suffered from a pre-existing condition known as “venous stasis,” which is poor blood flow in the extremities. The specialist told the jury that fire ant bites, not battery acid, had irritated Lieupo’s pre-existing condition and caused the skin irritation on his legs.  

The jury in rural Hamilton County, where Lieupo has lived his entire life, awarded him $5,211,500 for his injuries. 

“This is one of the most egregious jury verdicts we have seen in Florida,” said Jason Gonzalez, Tallahassee managing partner for Shutts & Bowen. Gonzalez will argue the appeal before the First District Court, but he was not involved in the trial. 

“Not only does this verdict defy all critical thinking when compared to the evidence, but legally, it should never have gone to trial because Lieupo could not prove the defendant was negligent, and instead filed a strict liability claim that is not allowed in personal injury cases,” Gonzalez added. 

The case is drawing national attention. At a recent legal conference the lawsuit was referred to as “The Five Million Dollar Ant Bite Case.”  It's being compared to the infamous McDonald’s hot coffee case, in which a New Mexico jury awarded $2.86 million for a spilled coffee injury on the legal theory that the coffee was “defective” because it was hot.

Tiger Joyce, president of the American Tort Reform Association that recently ranked Florida as the No. 1 “Judicial Hellhole” in America, said this case may be worse than the McDonald’s case.

“In the McDonald’s hot coffee case, the judge at least had the good sense to reduce the jury verdict by over $2.2 million,” said Joyce.  “In the Florida ant bite case the judge ignored binding Supreme Court precedent when he let the plaintiff file a strict liability claim and not prove negligence. Then the judge compounded his error by allowing the absurd $5.2 million jury award to stand.

"This case is the poster child for all that’s wrong with the Florida civil justice system,” said Joyce. 

William Large of the Florida Justice Reform Institute says the "Five Million Dollar Ant Bite Case" will have a far-reaching and harmful impact if it stands.  “The judge in this case allowed a personal injury lawsuit to proceed under Florida’s strict liability environmental contamination statute that is only supposed to apply to damages to natural resources, not injuries to humans,” he said.

In 2010 the Florida Supreme Court addressed the same issue in the landmark case of Curd v. Mosaic, and the Court said personal injury claims are not permitted under the statute.

“We can’t figure out why the judge allowed this to go forward in direct violation of binding Supreme Court precedent on the issue,” said Large, who described the lawsuit as a massive expansion of liability in Florida, that if not reversed on appeal will cost Florida consumers and job creators billions in increased insurance premiums.

The case will be heard March 6 by a three-judge panel at the First District Court of Appeal.

 Reach Nancy Smith at [email protected] or at 228-282-2423. Twitter: @NancyLBSmith