Biz Group Asks Fla. Justices To Ditch Geico Bad Faith Case

July 31, 2017/in Law360

Biz Group Asks Fla. Justices To Ditch Geico Bad Faith Case

By Jeff Sistrunk

Law360, Los Angeles (July 31, 2017, 9:10 PM EDT) — A Florida business group urged the state’s high court Monday to reject a challenge to an appellate panel’s decision that Geico didn’t act in bad faith by not settling claims against a policyholder later hit with an $8.7 million fatal-crash judgment, saying the panel’s ruling doesn’t directly conflict with any Sunshine State precedent.

In an amicus brief supporting Geico, the Florida Justice Reform Institute — which describes itself as a coalition of businesses and citizens aiming to promote “fair and equitable legal practices” and eliminate “wasteful civil litigation” — said the Florida Supreme Court shouldn’t have agreed to review a state Fourth District Court of Appeal panel’s decision overturning a judgment in favor of Geico policyholder James Harvey and entering a directed verdict in the insurer’s favor on Harvey’s bad faith claims.

According to the institute, the Florida justices should only review appellate decisions that “expressly and directly” conflict with rulings on the same legal question by the Florida high court or other state appellate courts. Here, the group argued, the Fourth District panel’s ruling was in line with applicable precedent regarding the requirements for bad faith claims and directed verdicts.

“In reality, accepting review of the Fourth District’s decision in these circumstances would invite every party that loses at a district court of appeal on the issue of whether a directed verdict should have been granted to come up to this court to seek a second review with the hope to obtain a different result,” the institute’s attorneys wrote.

An attorney for Harvey did not immediately respond to a request for comment late Monday.

The dispute dates back to Aug. 8, 2006, when Harvey was involved in a car accident that resulted in the death of John Potts, according to court papers. Potts’ widow proceeded to sue Harvey, and a jury awarded her $8.7 million. Harvey then sued Geico, saying that if the insurer had handled the claim in good faith, the widow would have settled for Harvey’s $100,000 policy limit before even bringing suit.

Harvey blamed an allegedly overworked, disorganized claims handler at Geico who never passed word from the Potts estate’s lawyer that the estate wanted Harvey to give a recorded statement. Such a statement would have established whether he had sufficient business assets worth pursuing, among other things.

Instead, Harvey has argued, the claims handler, Fran Korkus, said Harvey was unavailable for such a statement and never told Harvey that the statement was even requested. It was not until Korkus faxed Harvey a letter from the Potts estate’s lawyer referencing the prior request for a statement that Harvey first became aware of the request, according to court papers.

Korkus later admitted at trial that she knew the estate’s attorney, Sean Dominick, had to request the statement to satisfy his duty of due diligence to his client, according to court documents. Dominick, meanwhile, testified that he would have told Potts’ widow to settle instead of filing suit had he been made aware that Harvey retained personal counsel to review his business assets, court papers show.

A Florida jury ultimately concluded that Geico had acted in bad faith by failing to settle the Potts estate’s claims against Harvey. In January, though, a Fourth District panel reversed the trial court’s judgment and ordered a directed verdict be entered in Geico’s favor. The appellate panel said that while Geico’s claims-handling process “was not without fault and could be improved,” it did not amount to bad faith.

Harvey then sought review from the Florida Supreme Court, which accepted jurisdiction in June.

In Monday’s brief, the institute contended that the Florida justices had “improvidently granted” review of the case, based on Harvey’s assertions that the Fourth District panel’s conclusion directly conflicted with multiple precedential decisions governing bad faith claims and directed verdicts.

The institute, however, said that the panel’s decision was entirely consistent with precedent. The group asserted that the panel had correctly followed the Florida Supreme Court’s governing decision in the case of Boston Old Colony Insurance Co. v. Gutierrez by analyzing seven factors weighing on whether Geico acted in good faith and applying the facts of the case to each of them.

“What [Harvey] ultimately suggests is that a directed verdict is never appropriate in a bad faith action, implying that any decision in which a court takes the issue of bad faith away from a jury conflicts with this court’s precedent that the totality of circumstances surrounding bad faith must be considered,” the group’s attorneys wrote.

According to the institute, because the Fourth District panel’s decision is “fully reconcilable” with all the Florida Supreme Court’s prior decisions, the Florida justices should now reject jurisdiction of the case.

The Florida Justice Reform Institute is represented by its own William W. Large and by Rodolfo Sorondo Jr. of Holland & Knight LLP.

Harvey is represented by Philip Burlington, Bard D. Rockenbach and Andrew A. Harris of Burlington & Rockenbach PA, Kimberly Boldt, Mario R. Giommoni and Ryan C. Taylor of Boldt Law Firm PA, and Fred Cunningham and Greg Yaffa of Domnick Cunningham & Whalen.

Geico is represented by B. Richard Young, Adam Duke and Cody Pflueger of Young Bill Boles Palmer & Duke PA.

The case is Harvey v. Geico General Insurance Co., case number SC17-85, in the Florida Supreme Court.

–Additional reporting by Cara Salvatore. Editing by Aaron Pelc.

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Fla. Justices Could Chill Doc Malpractice Suits, Attys Fear

June 7, 2016/in Law360

Fla. Justices Could Chill Doc Malpractice Suits, Attys Fear
Share us on: By Carolina Bolado

Law360, Miami (June 7, 2016, 2:13 PM ET) — Medical malpractice cases coming before the Florida Supreme Court on Thursday could transform the landscape for such litigation in the state by cementing lawmakers’ power to cap attorneys’ fee awards in cases against public facilities, which patient attorneys contend would slash citizens’ access to court.

The state’s high court will hear oral arguments in two high-profile cases debating the constitutionality of statutes that allow a claims bill to limit an attorneys’ fee award and that cap noneconomic damages in medical malpractice cases.

In the fee award case, plaintiffs firm Searcy Denney Scarola Barnhart & Shipley PA is fighting for the $3.75 million in attorneys’ fees the firm says it’s owed for work representing the family of Aaron Edwards, who has cerebral palsy after a birth accident in 1997, in a malpractice suit against Lee Memorial Hospital.

A jury awarded the family $31 million in 2007, but because Lee Memorial is a public hospital, it was liable for just $200,000 under the sovereign immunity damage limitations in state law. After a public campaign to get the family more money, the state Legislature passed a claims bill directing the hospital to pay $15 million into a trust for Edwards that limited the attorneys’ fee award to $100,000.

Florida’s Fourth District Court of Appeal last year ruled that the claims bill was constitutional, butasked the state’s highest court to weigh in on the case.

For plaintiffs attorneys, the Legislature’s actions and the Fourth District’s ruling, if upheld, could make them think twice before taking on malpractice cases against public facilities that could be considered arms of the state, according to Jessie Harrell of Creed & Gowdy, who authored an amicus brief backing Searcy Denney for the Florida Justice Association.

And that hesitation on the part of attorneys could make it difficult for the average citizen to find an attorney, particularly those who are seriously injured, she said. Attorneys won’t be willing to take on those difficult cases — which involve paying tens of thousands of dollars to experts and investing countless hours — if the odds of getting paid at the end are so slim.

“What we’re saying is that Florida citizens have a constitutional right to access the court system, and if the Legislature is allowed to rewrite the contract that citizens have entered with their attorneys, no attorneys are going to be able to take the case,” Harrell said. “It’s unconstitutional to allow the Legislature to put in this limitation.”

But the state, in its own brief, said private parties cannot contractually bind the Legislature in the exercise of its power over claims bills. The state noted that the contingent fee contract in the Edwards case included a clause stating that if a defendant is entitled to sovereign immunity, the fee amount could be limited by law. The state said that is exactly what happened.

The Florida Legislature, in its own amicus brief, said that neither the Edwards family nor their attorneys have a legal entitlement to funds over $200,000. The Legislature noted that on average only 25 percent of claims bills get passed each year.

“When the Legislature, in an act of grace, authorizes payment to compensate a claimant or claimants, it has a duty to be mindful of the funds of the state and its instrumentalities and the available resources necessary to meet its obligations,” the Legislature said.

On Thursday, the high court will also hear the challenge to the statutory noneconomic damages cap stemming from the case of Susan Kalitan, who had outpatient surgery in 2007 in the North Broward Hospital District to treat carpal tunnel syndrome. The surgery required general anesthesia, and during intubation, her esophagus was perforated.

She complained of excruciating pain in her chest and back but was sent home with pain relief drugs. When a neighbor found her unresponsive the next day, she was rushed into surgery and kept in a drug-induced coma for several weeks. She had to undergo intensive therapy to be able to eat again and to regain mobility.

A jury found in her favor and awarded $4,718,011 in total damages, including noneconomic damages of $2 million for past pain and suffering and $2 million for future pain and suffering, according to the opinion. The trial judge reduced the noneconomic damages by close to $2 million because of the statutory cap and cut the damages by another $1.3 million, as the hospital’s share of the liability was capped at $100,000 because of its status as a sovereign entity.

The Fourth District declared the statute unconstitutional, applying the same test the Florida Supreme Court used in Estate of McCall v. United States, in which the court concluded that the cap on noneconomic damages for medical malpractice cases does not pass the rational basis test because it arbitrarily reduces medical malpractice claimants’ rights to full compensation when there are multiple claimants.

But the state and tort reform groups said the appeals court misinterpreted the McCall decision and expanded it to such an extent that any other caps could be struck down.

“The personal injury medical malpractice noneconomic damages caps are not the only caps in jeopardy,” the Florida Justice Reform Institute and the Florida Hospital Association said in an amicus brief. “Indeed, other essential damages caps in Florida law would be subject to constitutional challenges should this court affirm the erroneous analysis of Kalitan.”

William Large of the Florida Justice Reform Institute said statutory caps on noneconomic damages help restore some predictability to damage awards, which ultimately benefits consumers who would otherwise have increased health care costs.

The cap was passed in 2003 as part of a legislative package intending to alleviate a medical malpractice insurance crisis in the state. According to Holland & Knight LLP’s Mark Delegal, who helped author the amicus brief with Large, malpractice insurance rates were increasing about 25 percent a year at that point. By 2006, they had started to come down.

He pointed out that the damages cap isn’t the only thing that drove rates down — California, which had implemented tort reform in 1976 but changed nothing since then, and New Jersey, which has no damages caps whatsoever — also saw decreases in medical malpractice activity and lower rates.

“The caps are a contributing factor for reduced frequency in the number of lawsuits against medical providers,” Delegal said. “It’s not the only factor, but it is a contributing factor.”

Kalitan is urging the high court to reject the hospital’s argument that the McCall decision applies only to multiple claimant cases and argues that the caps do not bear a rational relationship with the stated objective of reducing malpractice premiums.

The majority in McCall also held “that even if the alleged medical malpractice crisis ever existed, it no longer does,” Kalitan said. “This reasoning by a majority of this court applies to make the caps unconstitutional whether there is a single claimant or multiple claimants.”

She argues that the caps also are unconstitutional because they limit access to the courts and violate the right to trial by jury, because caps applied to a verdict deprive the plaintiff of the damages awarded by the jury.

Searcy Denney is represented by Christian D. Searcy and Jack P. Hill of Searcy Denney Scarola Barnhart & Shipley PA, George A. Vaka of Vaka Law Group PL, and Edna L. Caruso PA.

Florida is represented by Rachel Nordby of the Florida Attorney General’s Office.

Kalitan is represented by Crane A. Johnstone and Scott P. Schlesinger of Schlesinger Law Offices PA and Philip M. Burlington and Nichole J. Segal of Burlington & Rockenbach PA.

North Broward Hospital is represented by Thomas Heath of Heath & Carcioppolo Chtd. and Thomas A. Valdez and Jeffrey R. Creasman of Quintairos Prieto Wood & Boyer PA.

The cases are Searcy Denney Scarola Barnhart & Shipley PA et al. v. State of Florida, case number SC15-1747, and North Broward Hospital District et al. v. Kalitan et al., case number SC15-1858, in the Supreme Court of Florida.

–Editing by Katherine Rautenberg and Kelly Duncan.

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Business Groups Oppose Fla. Workers’ Comp Law Challenge

January 11, 2016/in Law360

By Carolina Bolado

Law360, Miami (January 11, 2016, 9:30 PM ET) — Florida business and insurance organizations on Friday backed Hialeah Hospital in its fight against a former nurse challenging the state workers’ compensation law, urging the Florida Supreme Court to declare the law constitutional.

In three amicus briefs filed on behalf of the hospital, groups like Associated Industries of Florida, the Florida League of Cities, the Florida Association of Insurance Agents, the Florida Chamber of Commerce and the Florida Retail Federation told the Supreme Court it should apply the rational basis test, and not strict scrutiny as requested by nurse Daniel Stahl, when determining whether the workers’ compensation statute is constitutional.

Strict scrutiny, which requires a law to be narrowly tailored and to further a compelling governmental interest in order to pass constitutional muster, should be applied only to laws that involve a fundamental right or affects a suspect class, the groups said. In this case, the court should apply the more lenient form of judicial review, the rational basis test, they said.

The statute is important to keep Florida on a growth trajectory, the groups said.

“Maintaining the delicate balance between the interests of employers and employees in a self-executing system that provides affordable and available coverage to injured workers is critically important to the state and its continued economic success,” they said.

Stahl injured his back on Dec. 8, 2003, while lifting a patient at Hialeah Hospital, just weeks after an amendment to the act removing benefits for partial disability was enacted. He was left with a permanent impairment and was restricted from lifting heavy weights, according to his brief.

He could no longer do his job and had to take a position teaching at a nursing school, which resulted in a pay cut, the brief said.

The petitioner has been litigating his claims for more than a decade since filing a petition for benefits with the state Division of Administrative Hearings’ Office of Judges of Compensation Claims in 2005, according to court documents. The matter appeared before the First District Court of Appeal five times before the appeal that resulted in the law being deemed constitutional.

The Supreme Court agreed to consider the decision on Oct. 13, garnering the attention of a number of workers’ advocacy groups — like the Florida Justice Association, the Florida Police Benevolent Association and Florida Workers’ Advocates — who filed amicus briefs in favor of Stahl and asked the court to declare the state’s workers’ compensation statute unconstitutional.

The groups argued that amendments made between the time the workers’ compensation law was first enacted, in 1935, and 2003 have made the system inadequate and, thus, in violation of the 14th Amendment of the U.S. Constitution and the Florida Constitution.

Florida lawmakers have eliminated workers’ rights in several instances, including repealing the right to opt out of the system in 1970, reducing the temporary disability benefits limit to 104 weeks in 1993 and approving the 2003 amendment removing benefits for partial disability, the Workers’ Injury Law & Advocacy Group and others said. Temporary total disability benefits were previously limited to 350 weeks, while temporary permanent disability benefits were not to exceed five years, according to the group.

The “grand bargain” of the workers’ compensation system, in which employees give up the right to sue their employers for negligently inflicted injuries in exchange for sure benefits for all workplace injuries, is failing in Florida, where workers are getting a raw deal, according to the Workers’ Injury Law & Advocacy Group.

Regardless, Stahl lacks standing to challenge a 2003 amendment to the act because he never established that he would have been entitled to benefits if the requirements hadn’t been changed, according to the respondents.

Hialeah Hospital and its administrator also argued that there’s nothing on the record to support a challenge to a 1994 change adding a $10 co-pay per visit after reaching maximum medical improvement, saying the charge is justified by the need to ensure reasonable benefit costs.

Stahl is represented by the Law Offices of Mark L. Zientz PA.

The Associated Industries of Florida is represented by James N. McConnaughhay and David A. McCranie of McConnaughhay Coonrod Pope Weaver Stern & Thomas PA.

The Florida Association of Insurance Agents and American Association of Independent Claims Professionals are represented by William H. Rogner.

Florida Justice Reform Institute and Florida Chamber of Commerce are represented by Katherine E. Giddings and Diane G. DeWolf of Akerman LLP, Roy Carroll Young of Young van Assenderp & Qualls PA and William W. Large of Florida Justice Reform Institute.

Hialeah Hospital and Sedgwick are represented by Kenneth B. Bell of Gunster Yoakley & Stewart PA and Kimberly J. Fernandes of Kelley Kronenberg PA

The case is Stahl v. Hialeah Hospital et al., case number SC15-725, in the Supreme Court of Florida.

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Florida Cases To Watch In 2016

December 24, 2015/in Law360

By Carolina Bolado

Law360, Miami (December 24, 2015, 8:37 PM ET) — Florida appeals courts are set to tackle several broad-ranging issues in 2016 that will affect litigation across the state, including the statute of limitations on mortgage foreclosure suits, damages caps in personal injury medical malpractice cases and how far the attorney-client privilege extends in cases in which plaintiffs attorneys refer clients to physicians.

Here are the key cases attorneys will be watching this year:

Bartram v. US Bank NA and Deutsche Bank v. Beauvais

Real estate attorneys around the state are keeping close tabs on a pair of foreclosure cases that should clarify how the statute of limitations is applied to mortgage foreclosure suits.

“As far as affecting commercial practice, it’s right there at the top of the list,” said Hilarie Bass of Greenberg Traurig LLP

Bartram v. U.S. Bank began with a 2006 foreclosure lawsuit against Lewis Bartram, who, after a divorce, allegedly stopped making payments to the bank or to his ex-wife on a $650,000 mortgage. In April 2011, with Bartram’s suit still languishing in the courts, his ex-wife Patricia Bartram filed a suit to foreclose her mortgage, naming her ex-husband, the bank and the homeowners’ association as defendants.

One month later, the foreclosure suit against Lewis Bartram was dismissed, and he filed a claim seeking declaratory judgment from the bank because it had been more than five years since his default and the statute of limitations had run out. He argued that the clock began to run when he defaulted in January 2006 and the bank accelerated the loan.

The trial court sided with him, but the Fifth District Court of Appeal reversed the ruling and certified the question of whether the acceleration of payments under a loan triggers the statute of limitations to the Florida Supreme Court. Oral arguments were held in November, and a decision is expected in the coming year.

In the Beauvais case, the Third District Court of Appeal in December ruled that the acceleration of the mortgage debt triggered the start of the statute of limitations. Because there were no new payments due, there was no new default after the lawsuit was dismissed and the later lawsuit was time-barred, according to the appeals court.

That case was reheard en banc last month. The ruling creates a clear circuit split for the Florida Supreme Court to resolve.

“Think of the robosigning scandal where lawsuits were put on ice or dismissed because of paperwork issues,” said Michael Provenzale of Lowndes Drosdick Doster Kantor & Reed PA. “If those were dismissed and haven’t been refiled, it could be that many cases will run into this kind of problem.”

Deutsche Bank is represented by William P. McCaughan, Steven R. Weinstein and Stephanie N. Moot of K&L Gates

Beauvais is represented by Steven M. Siegfried and Nicholas Sigfried of Sigfried Rivera Hyman De La Torre Mass & Sobel and Todd L. Wallen of The Wallen Law Firm.

The case is Deutsche Bank Trust Company Americas v. Beauvais et al., case number 3D14-575, in the Third District Court of Appeal of Florida.

US Bank is represented by Jeffrey C. Sirolly and Michael D. Starks of Baker Donelson Bearman Caldwell & Berkowitz PC and Bill McCaughan of K&L Gates LLP.

Lewis Bertram is represented by Michael A. Wasylik of Ricardo & Wasylik PL, Thomas R. Pycraft Jr. of Pycraft Legal Services, and Dineen Pashoukos Wasylik.

The case is Bartram v. U.S. Bank NA et al., case number SC14-1265, in the Supreme Court of Florida.

Florida Department of Revenue v. American Business USA Corp.

The Florida Supreme Court is expected to rule in a challenge to a state law imposing tax on Florida-based florists’ sale of flowers to out-of-state recipients that attorneys say could reach beyond just florists.

“It has the potential for being a broad-reaching issue because you’re talking about taxing sales that occur in Florida to out-of-state citizens,” said Charles Lichtman of Berger Singerman LLP

At oral arguments in November, American Business USA Corp., which runs the online florist 1Vende, argued that the tax was improper because the goods at issue were never brought into Florida.

The state, on the other hand, said the Fourth District Court of Appeal had mistakenly concluded that Florida lacked a nexus to the sales when it declared the law violated the dormant commerce clause in Article I, Section 8 of the U.S. Constitution by burdening interstate commerce.

American Business is represented by Michael D. Sloan, David B. Esau and Dean A. Morande of Carlton Fields Jorden Burt

Florida is represented by Pam Bondi, Allen Winsor, Jeffrey M. Dikman and Angela L. Huston of the state attorney general’s office.

The case is Florida Department of Revenue v. American Business USA Corp., case number SC14-2404, in the Supreme Court of Florida.

Worley v. Central Florida Young Men’s Christian Association

The attorney-client privilege is under scrutiny in a closely watched case currently before the Florida Supreme Court involving a woman, Heather Worley, who was injured when she tripped and fell in the parking lot of Central Florida YMCA and was referred to a doctor by her attorneys at Morgan & Morgan PA

The Fifth District Court of Appeal refused to quash a trial court order requiring Worley to produce any information of a possible referral relationship between the doctors and her attorneys because, in the court’s opinion, the YMCA had sufficiently shown that such a relationship could exist. Worley argues that the Fifth District’s ruling “erodes the attorney-client privilege.”

The question now is whether information about the potential referral relationship is discoverable and if it is admissible to a jury to prove bias, according to Holland & Knight LLP’s Mark Delegal, who said the referral technique can be used by a plaintiffs’ lawyer to drive up the cost of medical care and therefore medical damages.

The case has attracted the attention of groups such as the Florida Justice Association, the Florida Justice Reform Institute and the Florida Defense Lawyers Association, all of which have requested permission to file amicus briefs.

Worley is represented by Andrew Parker Felix and W. Clay Mitchell Jr. of Morgan & Morgan PA and Celene H. Humphries and Tracy S. Carlin of Brannock & Humphries

The YMCA is represented by Lamar D. Oxford, Joseph R. Flood Jr. and Jessica C. Conner of Dean Ringers Morgan & Lawton PA

The case is Worley v. Central Florida Young Men’s Christian Association Inc. et al., case number SC15-1086, in the Supreme Court of Florida.

State Farm v. B&A Diagnostic

In November, U.S. District Judge K. Michael Moore granted summary judgment to State Farm Mutual Automobile Insurance Co. on its claims of unjust enrichment against B&A Diagnostic for allegedly illegal and fraudulent claims for X-rays filed under no-fault personal injury protection policies.

The decision, if upheld at the appellate level, directly impacts about 3,000 active pending lawsuits against State Farm and “creates a real sword for the insurance industry,” according to Lawrence Rochefort, chair of Akerman LLP‘s national litigation practice group.

Rochefort said the suit is an example of how insurance companies can use litigation to uncover fraud.

“It really handed a sword to the insurance industry, which was the point of bringing the case in the first place,” he said. “We live in a state where insurance fraud is a big issue. This is a very favorable opinion for the industry.”

State Farm is represented by Nicholas James Purvis, Sandra Lynn Heller and David Ira Spector of Akerman LLP.

B&A Diagnostic is represented by Gerald F. Richman, Georgia A. Thompson and Michael J. Napoleone of Richman Greer PA and Munir David Barakat of Barakat Legal PA.

The case is State Farm Mutual Automobile Insurance Co. et al. v. B&A Diagnostic Inc. et al., case number 1:14-cv-24387, in the U.S. District Court for the Southern District of Florida.

North Broward Hospital District v. Kalitan

In 2014, the Florida Supreme Court deemed the state’s $1 million statutory cap on wrongful death noneconomic damages from medical malpractice unconstitutional in Estate of McCall v. United States. Now, the court is set to consider the cap on personal injury medical malpractice cases.

The Fourth District Court of Appeal ruled in July in Susan Kalitan’s case against the North Broward Hospital District that the McCall case should be extended to include personal injury cases as well.

The case stems from a botched outpatient surgery in 2007 to treat Kalitan’s carpal tunnel syndrome. The surgery required general anesthesia, and during intubation, her esophagus was perforated, according to court documents. She later needed additional surgery to repair her esophagus and was in a drug-induced coma for several weeks. Kalitan had to undergo intensive therapy to be able to eat again and to regain mobility.

A jury found in her favor and awarded $4.7 million in total damages, including noneconomic damages of $2 million for past pain and suffering and $2 million for future pain and suffering.

Delegal said that since the McCall ruling came out in March 2014, there has been a slight uptick in the frequency of medical malpractice lawsuits.

“When McCall was decided, there was concern that it would open the floodgates,” he said. “For the first year, there was not much of a change at all, and now there’s been a slight uptick in the frequency.”

A similar concern exists if the Fourth District’s decision is upheld by the Supreme Court, though Delegal said it was difficult to predict what would happen.

“If the caps are thrown out on personal injury, there’s one less hurdle that a plaintiffs lawyer would have in deciding to pursue a case or not,” Delegal said.

Kalitan is represented by Crane Johnstone of Schlesinger Law Offices PA and Philip M. Burlington and Nichole J. Segal of Burlington and Rockenbach PA.

The hospital is represented by Dinah Stein and Gary Magnarini of Hicks Porter Ebenfeld & Stein PA, Heath & Carcioppolo, and Jeffrey R. Creasman and Thomas A. Valdez of Quintairos Prieto Wood & Boywer PA

The case is North Broward Hospital District et al. v. Kalitan et al., case number SC15-1858, in the Supreme Court of Florida.

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Fla. Attys Lock Horns Over New Expert Witness Standard

October 16, 2015/in Law360

Fla. Attys Lock Horns Over New Expert Witness Standard
By Nathan Hale

Law360, Miami (October 16, 2015, 8:29 PM ET) — The Florida Bar is in the midst of fierce debate over a change in state courts’ standard for the admissibility of expert testimony, with plaintiffs and defense attorneys at odds over whether the new standard unduly burdens plaintiffs or keeps junk science out of the courtroom.

On Friday, the bar’s board of governors tabled a vote on a measure, backed by the state’s powerful plaintiffs bar, that seeks to overturn the Florida Legislature’s 2013 passage of a law replacing the one-factor Frye standard with the more widely used Daubert standard. Defense attorneys favor the Daubert standard because they say it provides more reliable evidence, but plaintiffs attorneys say it overtaxes the underfunded state court system and threatens clients of lesser means.

The recommendation by the Code and Rules of Evidence Committee to move forward with the measure had initially appeared headed for passage, but a majority of members decided to hold off until Dec. 4 to give them more time to consider an issue that has elicited significant input.

“It’s a very important issue, and it affects so many areas of the practice,” board of governors member Michelle Suskauer, who moved for the deferment, told Law360 on Friday.

A criminal defense attorney based in West Palm Beach, Suskauer noted that attorneys John Wayne Hogan of Terrell Hogan and David Arthur Jones of Holland & Knight LLP, who represented the committee’s majority and minority on the matter at Friday’s meeting, said a seven-week delay would not have a detrimental effect in the long term.

The law at issue, which took effect on Oct. 1, 2013, approved use of the Daubert standard, which has been used in federal courts for more than 20 years and been adopted in some form by the majority of the states, but the Florida Supreme Court has final say in setting the Florida Evidence Code for procedural rules.

The Florida Bar’s Code and Rules of Evidence Committee took up a review at the court administration’s request. Its chair said ahead of Friday’s meeting that he expected the board of governors would affirm the committee’s findings and that the high court would issue a ruling.

“It’s a big issue, and it’s a very sensitive matter,” Peter Sartes II of Tragos Sartes & Tragos PLLC said. “I would be surprised if we do not receive some guidance from our Supreme Court.”

The Frye standard calls for a judge to gauge whether to allow expert testimony based only on if it represents principles that have gained “general acceptance” in their particular field, but the Daubert standard says a witness may testify as an expert in a particular field only if the testimony “is based upon sufficient facts or data; the testimony is the product of reliable principles and methods; and the witness has applied the principles and methods reliably to the facts of the case,” according to the Florida legislation

Case law has also established that Frye applies only to novel scientific techniques, whereas Daubert has been applied to all expert testimony.

Attorneys on both sides of the debate noted that while the Daubert standard may appear more stringent on its face, it actually originated from a U.S. Supreme Court ruling that allowed expert testimony excluded under Frye.

Practical application of the Daubert standard, however, typically requires judges to hold special hearings to make the required determinations, prompting critics to complain that it adds undue burden to overtaxed courts and could be abused by parties to stall or drive up costs against clients of lesser means.

Opponents have also held that the Florida Legislature overstepped its authority under the state constitution by passing what they say is a procedural measure.

“The introduction of Daubert was an attempt to ‘fix’ a system that wasn’t broken,” Brian R. Denney of Searcy Denney Scarola Barnhart & Shipley PA told Law360. “The Daubert standard will increase the burden on an already underfunded court system by adding to the workload of the courts and the lawyers that are attempting to achieve justice for their clients. This will, in the end, increase client costs and delay the determination of justice.”

Meanwhile, proponents of Daubert have touted it as a more modern standard that favors neither side and keeps “junk science” from reaching the stand.

“At the end of the day, the Daubert standard allows a judge to act as a gatekeeper to ensure that sound science and methodology are behind the expert witness opinion,” said William Large, executive director of the Florida Justice Research Institute, an organization founded by the Florida Chamber of Commerce.

The process to review the measure so far has been a lengthy one. The Code and Rules of Evidence Committee conducted roughly a year of review and analysis, which included a request for public comment that resulted in nearly 500 pages of letters, articles and case law being compiled.

The committee’s opinion shifted, too, as two straw polls of its members taken in late 2013 produced votes strongly in favor of the Daubert standard, but the final vote in October 2014 came down 16-14 in opposition to adoption.

That change in opinion only added to the controversy, with suggestions from some corners that the state’s powerful plaintiffs bar, particularly personal injury attorneys who made up a large part of the submitted opposing comments, had recognized the situation and made efforts to stack the committee.

“They’re like the Tea Party in the Republican Party — a small vocal group that has taken over the process,” said Mark Delegal, a partner at Holland & Knight LLP. “It’s self-interest, is what it is.”

Seth Miles, a partner at Grossman Roth PA, said he suspected such claims are an effort to build prejudice and said that personal injury attorneys’ involvement is not surprising because of the amount of time they spend in trials and their clientele

“We’re the guys on the ground and with clients most susceptible to harm,” he said.

Sartes, whose firm handles a mix of plaintiff and defense work, was also resolute in saying that is not the way the committee works. He said the change in opinion came as a result of the committee’s hard work and research, when questions of the Daubert standard’s constitutionality in Florida and potential practical effects came to light.

If the board of governors approves the committee’s recommendation at its next meeting in Naples, the issue will go to the Florida Supreme Court, which can choose to issue a ruling based on the committee’s findings or possibly with the assistance of oral arguments, or it could choose to take it under advisement and await a test case.

http://www.law360.com/articles/714196/fla-attys-lock-horns-over-new-expert-witness-standard