FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 7

CASES FROM THE WEEK OF FEBRUARY 17, 2017

SUPREME COURT REFUSES TO ADOPT THE CHANGES TO SECTION 90.702 AND 90.704 MADE BY THE LEGISLATURE TO CHANGE FLORIDA FROM A FRYE STATE TO A DAUBERT STATE--BUT ONLY DOES SO TO THE EXTENT THAT THE AMENDMENTS ARE PROCEDURAL.

In Re: Amendments to the Florida Evidence Code, 42 Fla. L. Weekly S179 (Fla. February 17, 2017):

The supreme court began its opinion by explaining how it has historically adopted procedural amendments to the Evidence Code, when they are enacted and amended by the legislature. However, occasionally the court has declined to adopt legislative changes to the Evidence Code because of significant concerns the constitutionality of the changes.

In this opinion, the supreme court not only “declined to adopt” the Daubert changes, it also declined to adopt the rule requiring that experts in medical malpractice cases are of the same (and not same or similar) specialty, as well as the defendant and a hearsay exception for statements made by elderly or disabled adults.

Historically, the Frye test applied only to “new or novel scientific evidence,” and required general acceptance of the principle in the respective scientific field.

Conversely, in Daubert, the United States Supreme Court held that the federal rules of evidence superseded Frye’s general exceptions test for the admissibility of scientific evidence, and conferred upon the trial judge the responsibility to ensure that any and all scientific testimony or evidence admitted is not only relevant but reliable.

The Florida rule applies to all expert testimony. In addressing the 2013 changes that the legislature made to create a Daubert standard in Florida, the rules committee recommended that the court should not adopt it to the extent that it is procedural. The committee expressed that it had “grave constitutional concerns” which included the undermining of the right to a trial by jury and the denial of access to the courts.

The court was very clear to point out that it was not addressing the constitutionality of the statute or the proposed rule within the context of this rules case but the fact that there were grave concerns about the constitutionality could be the basis for the court not to adopt the amendment.

As far as the “same specialty” amendment, which requires a standard of care expert witness in a medical malpractice action to specialize in the same specialty rather than the same or similar specialty of the health care provider against whom or on whose behalf the testimony was being offered, that amendment suffered from the same problems of being procedural.

Again, there were concerns that the statute was unconstitutional and would have a chilling effect on the ability to obtain expert witnesses and become prejudicial to the administration of justice.

The court did not address the substantive/procedural issue raised because the court may only address challenges to its rule making authority when a proper case or controversy has arisen and not in a rules case.

Finally, even though the committee recommended that the court adopt the legislation regarding the hearsay amendment, there were also constitutional issues regarding the inability to cross-examine evidence and the extent that the rule is procedural. Ultimately, the supreme court merely chose “not to adopt” the amendments.

AUTHOR’S COMMENTARY:

So what does this mean? Is Daubert dead, as many have opined and celebrated? Which law will trial judges now apply--Frye or Daubert? Is this the last we have heard regarding these legislative changes to the Evidence Code?

Unfortunately, the answers are not abundantly clear.

The holding of the opinion is simply that the Florida Supreme Court has “declined to adopt to the extent they are procedural” any of these referenced legislative changes.

There is some guidance for how this will later be handled from a federal case called Bivins v. Rogers, 2016 WL 4702682 (S.D. Fla. 2016), where the Southern District looked at an earlier Florida Supreme Court decision where the Court declined to adopt a legislative change (to a privilege issue; section 90.5021). The case specifically addressed that the supreme court had declined to follow recommendations to adopt the statute.

While the court had declined to follow the Committee’s recommendations to adopt a new provision of the evidence code (creating a fiduciary lawyer-client privilege), it did so because it questioned the need for the privilege to the extent that it was procedural, and not because the statute was unconstitutional or otherwise lawful. The Southern District in Bivins then wrote:

The Florida Supreme Court’s decision not to adopt section 90.5021 because it questioned the need for the privilege ‘to the extent that it is procedural’ did not vitiate or overturn the statute. Therefore, contrary to Plaintiff’s argument, the statute remains the law in Florida.

The court went on to reject Plaintiff’s argument that section 90.5021 was not the current law in Florida.

To ensure that you preserve this issue for an appeal, one should certainly make a constitutional argument based on the “grave constitutional concerns.” Unfortunately, notwithstanding the ruling by the Florida Supreme Court, it would seem that one of the district courts will have to actually rule on the constitutionality or the validity of the statute(s) regarding the constitutional concerns (access to courts and right to a jury trial were the ones actually mentioned by the supreme court, but the list was not finite).

From a practical standpoint, it seems advisable and safest at this point to do everything in one’s power to ensure that experts can still survive Daubert, and that parties choose experts based on the same specialty (not just same or similar) in med-mal cases.

I will continue to keep you advised as this law evolves.

SCOPE OF PERMISSIBLE DISCOVERY UNDER SECTION 627.736(6)(c) IS LIMITED TO THE PRODUCTION OF DOCUMENTS AS DESCRIBED IN SUBSECTION (6)(b).

State Farm v. Shands Jacksonville Medical Center, 42 Fla. L. Weekly S176 (Fla. February 16, 2017):

On certified conflict between the First and Fourth Districts, the court addressed discovery allowed under the statute. According to the statute’s plain language, discovery is limited to the production of a written report of the history, condition, treatment dates and costs of such treatment of the injured person, and why items identified by the insurer were reasonable in amount and medically necessary, together with a sworn statement. There is also allowance for production, inspection and copying of records regarding history, condition, treatment dates and costs of treatment.

The court explained that subsection (6) provides limited prelitigation discovery, as well as specified information about treatment and charges for treatment provided to the injured party. The gamut of discovery tools found in the rules of civil procedure is not triggered, until litigation over reasonableness of the charges has begun.

The court also explained that nothing in subsection (6)(b) or (6)(c) contemplates requiring the PIP provider to submit any of its representatives to deposition, and the trial court erred by ordering the provider to make a designated corporate representative available.

TRIAL COURT ERRED IN DETERMINING THERE WAS AUTOMOBILE LIABILITY COVERAGE BY OPERATON OF ESTOPPEL, WHERE THE INSURED FAILED TO PROVE PREJUDICE.

Progressive Express Insurance v. Anzualda Brothers, 42 Fla. L. Weekly D351 (Fla. 1st DCA February 10, 2017):

The insurer argued it should not have to provide coverage for this accident which had resulted in the fatality of one victim and the injury of another, because the vehicle the driver was driving was not a listed vehicle on the insurance policy, and the driver had failed to prove all three elements of its coverage by estoppel claim.

To be entitled to coverage by estoppel, the plaintiff must prove that (1) the defendant company made a representation of material fact, (2) the plaintiff reasonably relied on that representation of material fact and (3) the plaintiff was prejudiced by its reliance.

In this case, the court somehow found that the plaintiff had failed to prove any prejudice, which led the court to vacate the final judgment. Unfortunately, the opinion does not include any facts to make the ruling a bit more understandable.

TRIAL COURT DEPARTED FROM ESSENTIAL REQUIREMENTS OF LAW BY GRANTING MOTION TO AMEND COMPLAINT TO ASSERT CLAIM FOR PUNITIVE DAMAGES WHERE PLAINTIFF DID NOT ATTACH A COPY OF THE PROPOSED AMENDMENT TO THE MOTION--IT WAS ALSO A DEPARTURE FOR THE COURT TO OVERRULE THE DEFENDANT’S OBJECTIONS AND PERMIT THE PLAINTIFF TO MAKE AN INAPPROPRIATE ORAL PROFFER--BEFORE GRANTING A MOTION TO AMEND, THE COURT IS REQUIRED TO MAKE AN AFFIRMATIVE FINDING THAT PLAINTIFF HAS MADE A REASONABLE SHOWING BY EVIDENCE WHICH WOULD PROVIDE A REASONABLE EVIDENTIARY BASIS FOR RECOVERING PUNITIVE DAMAGES.

Varnedore v. Todd Copeland as Trustee and Guardian, 42 Fla. L. Weekly D360 (Fla. 5th DCA February 10, 2017):

The plaintiff moved to amend his complaint to assert claims for punitive damages but did not attach a copy of the proposed amended complaint to the motion. While there was an evidentiary proffer in advance of the hearing, counsel also made additional oral evidentiary proffers during the hearing over the defendant’s objections. The trial court granted the motion as to some defendants but not as to others. It did not provide a basis for its rulings in its oral pronouncement or in its later written order. The defendant petitioned for certiorari.

Certiorari review is available in a punitive damages case to determine whether the trial court complied with all applicable requirements and analysis before granting the motion. The court must consider both the pleading component, and the evidentiary component of each motion to amend before allowing plaintiff to assert a punitive damages claim.

Rule 1.190(a) requires a party who files a motion to amend a pleading to attach the proposed amended pleading. In order to perform its functions as gatekeeper, the trial court must understand the specific claim proposed by the plaintiff that may justify the award of punitive damages.

The plaintiff’s unexplained failure to file the proposed complaint resulted in confusion, and made it unreasonably difficult for the defendants to prepare and argue their position and hampered the trial court in its effort to fulfill its role as gatekeeper. This in and of itself was enough for the court to grant the certiorari.

As guidance for the parties, the court also admonished that the term “proffer” for purposes of rule 1.190(f) refers only to timely filed documents and excludes oral representations of additional evidence made during the hearing. Thus, the trial court cannot properly grant plaintiff’s counsel’s oral or other proffers of evidence which are presented during the hearing for the first time.

Finally, when granting a motion to amend to add punitive damages, the trial court must make affirmative findings to demonstrate that there was a reasonable showing of evidence to support the amendment.

A MOTION FOR PREVAILING PARTY’S ATTORNEY’S FEES MUST BE FILED WITHIN 30 DAYS AFTER THE FINAL JUDGMENT RESERVING JURISDICTION--IT IS ERROR TO GRANT A MOTION FOR FEES BECAUSE OF EXCUSABLE NEGLECT.

Hovercraft of South Florida v. Reynolds, 42 Fla. L. Weekly D367 (Fla. 5th DCA February 10, 2017):

Rule 1.525 sets forth an outside deadline of 30 days for service of a motion for attorney’s fees, to be made after the final judgment.

While the trial court found excusable neglect existed, it provided no basis for its conclusion to that effect. On the record, the court said it appeared that the failure to timely file the motion was due to counsel’s erroneous conclusion that the motion for rehearing tolled the time for filing. However, legal mistakes do not constitute excusable neglect.

The record was also devoid of any evidence suggesting a breakdown in mechanical or operational practices of the attorney’s office equipment or staff. Therefore, there was no excusable neglect demonstrated in the record.

RELEASE FORM ATTACHED TO PROPOSAL FOR SETTLEMENT WAIVING LOSS OF CONSORTIUM CLAIM WAS AMBIGUOUS WHEN READ TOGETHER WITH SECTION 768.0415 WHICH ALLOWS UNMARRIED DEPENDENT CHILDREN TO BRING LOSS OF CONSORTIUM CLAIMS BASED IN NEGLIGENCE-PROPOSAL WOULD HAVE BEEN IMPOSSIBLE FOR OFFEREE TO COMPLY WITH LOSS OF CONSORTIUM WAIVER, SINCE HE COULD NOT HONESTLY REPRESENT THAT HE HAD NO QUALIFYING DEPENDENTS UNDER THE STATUTE.

Diecidue v. Lewis, 42 Fla. L. Weekly D376 (Fla. 2nd DCA February 10, 2017):

In this auto case, Allstate had offered to settle the plaintiff’s claim for $50,000 inclusive of fees and costs. The proposal contained a release form which required the plaintiff to represent that he had no qualifying disability or qualifying dependents which would enable a claim to be made on behalf of any unmarried dependent as defined by section 768.0415. That section allows for such claims when a parent suffers significant permanent injury.

Allstate’s request for a waiver of the loss of consortium claim when read together with the statute was ambiguous because it would amount to an outright falsehood. Because the terms of the release demanded the signatory to declare that he had no qualifying dependents, signing the waiver would have required the plaintiff to represent that he had no unmarried dependent children, which was simply untrue.

When a proposal for settlement contains as a condition a general release, care has to be taken to ensure that the proposed release does not seek to extinguish claims that are extrinsic to the litigation. Here, the loss of consortium claim belonged to the plaintiff’s children and not to him. In this case, it would have been impossible for the plaintiff to comply with the loss of consortium waiver because plaintiff could not honestly represent that he had no qualifying dependents under the statute. Thus, the award of fees based upon the final judgment having been less than the proposal was reversed.