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Florida courts have historically relied on the standards set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (“Frye”) to determine the admissibility of expert opinions and testimony.  Though the Florida Supreme Court adopted Frye in the mid-1980s, Florida courts had applied this standard long before then. See Bundy v. State, 471 So. 2d 9 (Fla. 1985); Bundy v. State, 455 So. 2d 330 (Fla. 1984). However, in April 2013, the Florida Legislature stirred things up when it passed a bill that amended Florida Statute § 90.702 to replace the longstanding Frye standard with the standard used in Federal Courts, as announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert”). Since the amended statute came into effect, some members of the Florida bar have challenged its validity and advocated that the Florida Legislature overstepped its bounds and infringed on the Florida Supreme Court’s rule-making authority. These challenges resulted in a five-year long debate as to the appropriate standard in Florida to determine whether expert testimony is admissible: Frye or Daubert?

Under the Frye standard, expert opinion and testimony is admissible if it is based on new or novel scientific principles and methodologies that are generally accepted in the scientific community. Whereas under Daubert, general acceptance is not a prerequisite for admissibility. Rather, a trial judge acts as the gatekeeper and determines the admissibility for “any and all scientific testimony or evidence” that is relevant and reliable. While there has been a clear divide within Florida’s legal community between those who are pro-Frye versus pro-Daubert, the five-year-long debate over which standard should be the law and is the law in Florida is finally over.

Continue Reading Frye Makes a Strong Comeback in Florida

On August 30, 2016, a Miami-Dade jury awarded Richard Batchelor and his wife more than $21 million after finding that his mesothelioma arose, in part, from asbestos exposure during overhaul work at a Florida Power & Light Co. (FP+L) power plant. On December 27, 2017, the Third District Court of Appeal erased the verdict against defendant Bechtel Corporation (Bechtel), finding that the jury should never have considered claims against that defendant because of plaintiffs’ insufficient evidence.  The appellate court also found reversible error in an adverse inference instruction, and concluded that Bechtel’s efforts to locate discoverable information were reasonable under the circumstances.

Between 1974 and 1980, Richard Batchelor worked for FP&L as an electrical technician at two power plants including the Turkey Point power plants. At that time, Turkey Point was a sprawling and complex facility – occupying over three thousand acres and containing 12 nuclear-fueled units and two oil and natural gas fueled units – and provided power for all of South Florida. On any given day, four hundred FP&L employees and numerous contractors worked at Turkey Point. Mr. Batchelor was responsible for repairing and maintaining gauges and equipment at the site, including four of the nuclear and gas units. Insulation, an indeterminate amount of which contained asbestos, covered the various pipes, wires, and equipment at the plant. Mr. Batchelor never removed insulation from any equipment and never worked on equipment while the insulation was being removed. Instead, insulation removal was performed by independent contractors who specialized in insulation removal, and other FP&L workers. Mr. Batchelor did work in the vicinity of other workers removing insulation, but it is unclear how close Mr. Batchelor worked to those removing asbestos, how often this occurred, or the duration of the occurrences. When asked by his attorney if the dust he breathed in was from insulation, Mr. Batchelor responded, “It could be from anywhere. It’s just dust.”

One of the contractors retained to provide ongoing maintenance services of the equipment on site was defendant Bechtel. The contracts provided that FP&L would issue work orders at its discretion to Bechtel, which would do the work requested on a cost-plus basis. FP&L decided whether FP&L or Bechtel would provide needed supplies, equipment, and ancillary services. During the relevant time period, Bechtel provided 1,050,070 man hours of services at Turkey Point.

FP&L periodically shut down the units for repair and maintenance. During these shutdowns, FP&L had Bechtel perform major overhauls on the units. FP&L also had another contractor, Foster Wheeler, perform maintenance on the unit’s giant boilers, which were lined with insulation. Although other contractors were present most of the time, Bechtel received work instructions only from FP&L.

In 2015, Mr. Batchelor was diagnosed with terminal mesothelioma caused by asbestos exposure. On January 2, 2016, he filed suit against twenty-six defendants, including Bechtel Corporation, for negligently causing his mesothelioma. Mr. Batchelor’s medical causation expert never examined Mr. Batchelor and never visited Turkey Point. He based his opinion solely on a review of Mr. Batchelor’s deposition and published medical studies.

Mr. Batchelor’s claim against defendant Bechtel was based on premises liability, and contended that Bechtel was liable for any asbestos exposure he sustained from any source at Turkey Point that was under Bechtel’s possession or control. More specifically, Mr. Batchelor alleged that Bechtel was liable for the dangers of asbestos dust created by Bechtel “or by others in the areas of Turkey Point that were being controlled by Bechtel while Bechtel performed its work at the time Mr. Batchelor was exposed.”

In early August 2016, Mr. Batchelor’s attorney deposed Bechtel’s corporate representatives. Immediately after the depositions, Mr. Batchelor moved for sanctions, arguing that Bechtel failed to adequately search for documents and information from thirty-six to forty-two years ago that might have been provided by retired former employees. In opposition, Bechtel argued that it had no obligation to find former employees from so long ago and that attempts to locate past employees in similar lawsuits had proved futile due to the passage of time. Ultimately, the trial court granted the motion for an adverse inference based on Bechtel’s failure to attempt to locate former employees.

Several weeks later, the jury entered a verdict for Mr. Batchelor for $15,381,724.12 and $6 million for his wife. It attributed fault as follows:  Foster Wheeler 5%, FP&L 35%, and Bechtel 60%. The Third District Court of Appeal considered two points on appeal:  (1) the trial court should have directed a verdict because there was insufficient proof of Bechtel’s possession and control of the premise, and (2) the trial court should have granted a new trial because the adverse inference jury instruction was reversible error.

 

Premises Liability

The primary focus of the Third District Court of Appeal’s opinion was on whether Mr. Batchelor met his burden in proving a premises liability claim. Interestingly, Mr. Batchelor chose not to sue Defendant Bechtel under a products liability theory for manufacturing products containing asbestos. Nor did Mr. Batchelor sue Bechtel for removing asbestos in a manner that negligently exposed Mr. Batchelor to a dangerous level of asbestos.

Mr. Batchelor’s premises liability theory was that Bechtel, as the party in control of the premises, had a duty to warn Mr. Batchelor of the dangers of asbestos created by FP&L and by FP&L’s other contractors. To prove this theory, Mr. Batchelor was obligated to show that Bechtel had a right to control access to or exclude others from the Turkey Point power plant. In support, Mr. Batchelor offered no direct evidence that FP&L surrendered, and Bechtel took possession of, all or any part of Turkey Point. Instead, Mr. Batchelor relied on the following points:

(1)        Bechtel was a huge contractor at Turkey Point during the relevant time period and provided more than one million man hours of services during that time;

(2)        The service contracts provided that FP&L would issue future work orders and Bechtel would fill the work orders on a cost-plus basis;

(3)        The service contracts required Bechtel to maintain liability insurance “with respect to the scope of the Bechtel Services;” and

(4)        FP&L directed Bechtel to perform maintenance on the power units when they were down.

The Third District Court of Appeal was not persuaded by Mr. Batchelor’s arguments. Although Bechtel provided significant hours of services during the relevant time period, the plant itself was also serviced by four hundred FP&L employees per day, plus contractors – rendering Bechtel’s presence a “fraction of the presence of FPL’s own work force…” Mr. Batchelor also could not produce any language in the service contracts discussing Bechtel’s assumption of possession or control of all or any part of the plant, and a contractual provision requiring insurance coverage was not found to support an inference that FP&L surrendered possession. Finally, Bechtel was not the only entity performing maintenance on the power units, and therefore did not have the authority to exclude other contractors or FP&L employees from the areas. The appellate court concluded, “In the absence of direct or circumstantial evidence sufficient to support a logical inference, the conclusion that Bechtel exercised control and possession is no more than conjecture, speculation, and surmise.” Due to the lack of evidence, the court reversed the trial court’s ruling and held that the trial court should have granted Bechtel’s motion for directed verdict.

 

The Adverse Inference Jury Instruction

In granting Mr. Batchelor’s motion for sanctions against Bechtel for failing to properly prepare its corporate representatives, the trial judge instructed the jury as follows:

If you find that Bechtel’s failure to produce persons employed at Turkey Point between 1974 and 1980 to testify regarding Mr. Batchelor’s work at Turkey Point is unreasonable, and that their testimony would have been relevant to Mr. Batchelor’s work activities, you are permitted to infer that the evidence would have been unfavorable to Bechtel.

The trial court’s rationale for the sanction was that Bechtel failed to attempt to locate retired employees from 1974 to 1980 by mailing postcards to the last-known addresses of employees.

The Third District Court of Appeal thoroughly disagreed with the trial court’s decision, citing Rule 1.310(b)(6) of the Florida Rules of Civil Procedure. Under that rule, a corporation can be required to produce a representative to testify “about matters known or reasonably available to the organization.” The Court of Appeal explained that this rule places a duty on the corporation to affirmatively prepare its representative “to the extent matters are reasonably available, whether from documents, past employees, or other sources.”      The appellate court found that it was unreasonable to expect Bechtel to locate retirees who had worked at the plant over thirty years ago and then interview them to prepare a corporate witness with no guarantee of success. “Absent a specific court order to do so, we would not interpret a party’s responsibilities to prepare a representative to extend so far, particularly here, where the deposition is noticed to take place only a few weeks before trial when there is reduced time for such a large effort.” Without such a court order, the appellate court found that the trial court harmfully erred in imposing the sanction of an adverse inference jury instruction.  The appellate court cautioned that such an instruction should be rarely given as it is an extreme sanction, “reserved for circumstances where the normal discovery procedures have gone seriously awry.”

 

Speculative Nature of Asbestos Claims

Batchelor v. Bechtel Corp. underscores the broader problems of proof that tend to be inherent in asbestos claims as a result of the creeping nature of asbestos-related diseases. Plaintiffs typically do not develop symptoms of an asbestos-related disease until ten to forty years after asbestos exposure. After the extensive passage of time, documentary evidence is difficult to obtain and witnesses are difficult to locate. More importantly, basic memories from so long ago are vague and highly prone to inaccuracies. This situation can make it very difficult for defendants to defend themselves, but very simple for plaintiffs to get their cases to a jury.

The generally asymmetric nature of asbestos litigation can be explained as follows. In nearly every asbestos lawsuit, the plaintiff sues scores of defendants, sometimes a hundred, alleging that they manufactured asbestos-related products that exposed the plaintiff to asbestos many years ago and caused asbestos-related disease. As long as the plaintiff testifies that he used a specific manufacturer’s product, even in conclusory fashion and without any documentary support, that manufacturer often is unable to escape summary judgment. In other words, although the plaintiff has a very limited memory of his exposure many years ago, and no documentary evidence that he was exposed to a specific manufacturer’s product, that the product contained asbestos, or that he was exposed to a particular amount of asbestos from that specific product, the plaintiff still can maintain an action against that manufacturer and force it to defend itself against millions of dollars in exposure. Although plaintiffs are entitled to compensation for asbestos-related diseases, defendants should not be forced to incur these expenses without greater certainty that they manufactured the products the plaintiff was exposed to and that those products likely caused the plaintiff’s asbestos-related disease.

In 2015, the Florida Supreme Court issued a decision in Aubin v. Union Carbide, which mandated that juries be instructed on the “consumer expectations test.” On November 28, 2017, seven years after initially filing her lawsuit, a plaintiff in  Miami-Dade County won a $6.9 million asbestos verdict in a retrial based on the Aubin decision, in Font v. Union Carbide, Case No. 2010-041578-CA-01, This was the plaintiff’s second “bite at the apple,” as the first trial had resulted in a defense verdict for Union Carbide.

 

In the case underlying the Font appeal, Aubin, the Florida Supreme Court rejected sole reliance on the Third Restatement of Torts’ “risk utility test,” under which a plaintiff must demonstrate that “the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.” Aubin v. Union Carbide Corp., 177 So.3d 489, 505 (Fla. 2015). Instead, the Florida Supreme Court required courts to use the Second Restatement of Torts’ consumer expectations test, which asks whether a product is unreasonably dangerous in design because it failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner. Id. at 503. As described by the Florida Supreme Court in Aubin, “[t]he critical difference regarding design defects between the Second Restatement and the Third Restatement is that the Third Restatement not only replaces the consumer expectations test with the risk utility test but also requires the plaintiff to demonstrate the existence of a ‘reasonable alternative design.’ Id. at 505.

 

In rejecting sole reliance on the Third Restatement’s risk utility test, the Florida Supreme Court in Aubin explained that the original reason for imposing strict liability for defective and unreasonably dangerous products was to relieve injured consumers from the difficulties of proving negligence by the product manufacturer. Id. at 506-507. However, the Third Restatement eliminates consideration of consumer expectations, and, in fact, “imposes a higher burden on consumers to prove design defect than exists in negligence cases” by adding the additional requirement that an injured consumer “prove that there was a ‘reasonable alternative design’ available to the product’s manufacturer.” Id. at 506.

 

Two years later, the potential impact of the Aubin decision on asbestos litigation in Florida has become apparent in cases such as  Font v. Union Carbide. In Font, the plaintiff, individually and on behalf of her father’s estate, filed a wrongful death action against Union Carbide and other asbestos manufacturers and distributors for negligence and strict liability based on an alleged failure to warn, and for the manufacture of an allegedly defective product. The plaintiff alleged that her father died of malignant pleural mesothelioma as a result of exposure to joint compound products and texture sprays designed, manufactured, and supplied by the defendants that contained Union Carbide’s asbestos.

 

At trial, the plaintiff requested that the standard jury instruction provided by the Supreme Court Committee on Standard Jury Instruction in Civil Cases be given to the jury verbatim. That instruction defined “unreasonably dangerous” under both the risk utility and consumer expectations tests and states in pertinent part: “A product is unreasonably dangerous because of its design if the product fails to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the manufacturer or the risk of danger in the design outweighs the benefits.” The plaintiff argued that she was entitled to submit her case to the jury on both theories of strict liability; however, Union Carbide argued that the Third District had previously rejected the consumer expectations test and determined that the appropriate standard was the risk utility test. Therefore, Union Carbide requested that the case be submitted to the jury only on the risk utility theory. The trial court denied the plaintiff’s request to include the consumer expectations instruction, and the jury returned a verdict in favor of Union Carbide, which the plaintiff appealed.

 

On appeal, the plaintiff sought reversal because the trial court did not instruct the jury on the consumer expectations test. The Third District affirmed the lower court’s decision, and the plaintiff petitioned the Florida Supreme Court for review. The Florida Supreme Court accepted jurisdiction of the matter, quashed the lower court’s decision, and remanded to the Third District for reconsideration in accordance with Aubin. Ultimately, on July 27, 2016, the Third District reversed the judgment in favor of Union Carbide and remanded to the trial court, with directions that the plaintiff’s strict liability claim be retried before a jury instructed on both the consumer expectations test and the risk utility test as alternative definitions of design defect.

 

The second trial was interrupted by the Thanksgiving holiday which, significantly, allowed for long closing arguments to refresh the jury’s memory after an 11-day break between the majority of the trial and closings.  On retrial, the jury returned a verdict for the plaintiff to the tune of $6.9 million ($2.8 million of which was assigned to Union Carbide).

 

In Aubin, the Florida Supreme Court discussed the premise that the “consumer expectations test does not inherently favor either party.” Based on the outcome in Font, that may not necessarily be true, and the Aubin decision could have far-reaching effects on asbestos litigation.  Nevertheless, at this juncture, the full impact of Aubin remains to be seen.

 

Since 2004, the Florida Supreme Court has examined a series of objections raised by defendants to avoid producing records of “adverse medical incidents.”  In each case, the Court has found that Amendment 7 to the Florida Constitution, which grants broad rights of record access to medical patients, abrogates any Florida statute that would otherwise prohibit discovery, including statutes that previously exempted from discovery any records of investigations, proceedings, and/or peer review panels. Undaunted, defendants have continued to object to Amendment 7 discovery requests, using new and refined theories in response to each court decision. On October 26, 2017, the Florida Supreme Court appeared to have put an end to many of these creative defense tactics in Edwards v. Thomas.

 

History of Amendment 7

In 2004, the citizens of Florida voted to amend the Florida Constitution to allow nearly unfettered access to records of “adverse medical incidents.” This amendment, commonly referred to as Amendment 7, entitles any patient to records related to a health care facility’s “medical negligence, intentional misconduct, and any other act, neglect, or default that caused or could have caused injury to or death of a patient.” The stated purpose of the amendment was to “lift the shroud of secrecy from records of adverse medical incidents and make them widely available” because such records “may be important to a patient.” Although a lawsuit does not need to be filed to access these records, the issue seems particularly germane in medical negligence actions.

Before Amendment 7, Florida statutory law prohibited discovery of records of adverse medical incidents, which gave defendant hospitals a distinct advantage over medical negligence plaintiffs. These records tend to shed light on what a defendant hospital knew about the qualifications of attending physicians, the adequacy of its policies and procedures, and its own analysis of the particular medical incident at issue. After Amendment 7’s enactment, extensive litigation has sought to define the amendment’s scope, primarily with regard to what health care facilities can withhold from requesting patients, culminating in the opinion in Edwards v. Thomas.

 

Florida Supreme Court’s Decision in Edwards v. Thomas

In Edwards v. Thomas, the Florida Supreme Court was asked to decide if records from external peer review reports are discoverable under Amendment 7, and what it means for documents to be “made or received in the course of business.” The defendant hospital had refused to produce external peer review reports at issue, maintaining “that certain requested records did not relate to ‘adverse medical incidents,’ were not ‘made or received in the course of business,’ were protected by attorney-client privilege, and were protected as opinion work product.”

The trial court granted plaintiff’s motion to compel the defendant hospital to produce specific reports listed in the hospital’s privilege log “relating to attorney requested external peer review.” However, the Second District Court of Appeal quashed, in part, the trial court’s order on the basis that the external reports were not “made or received in the course of business” per Amendment 7’s requirements, and that they did not relate to an adverse medical incident. Specifically, the Second District Court of Appeal determined that the documents were not “made or received in the course of business” because the records were created by an expert retained for the purposes of litigation. The Second District also stated that the report did not relate to adverse medical incidents because the third party’s review was not part of the defendant hospital’s regular or routine peer review process.

In its analysis, the Florida Supreme Court focused on the text of Amendment 7, which states in full:

(a) In addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.

(b) In providing such access, the identity of patients involved in the incidents shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.

(c) For purposes of this section, the following terms have the following meanings:

(1) The phrases “health care facility” and “health care provider” have the meaning given in general law related to a patient’s rights and responsibilities.

(2) The term “patient” means an individual who has sought, is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.

(3) The phrase “adverse medical incident” means medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient, including, but not limited to, those incidents that are required by state or federal law to be reported to any governmental agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representative of any such committees.

(4) The phrase “have access to any records” means, in addition to any other procedure for producing such records provided by general law, making the records available for inspection and copying upon formal or informal request by the patient or a representative of the patient, provided that current records which have been made publicly available by publication or on the Internet may be “provided” by reference to the location at which the records are publicly available.

Art. X, § 25, Fla. Const. (emphasis added).

The Court found the language of Amendment 7 clear and unambiguous, and that it “conveys a clear and definite meaning.” In light of this, the Court was obligated to apply the unequivocal meaning of the plain language. The Court noted that the amendment provides for no limitation on the types of adverse medical incident reports and no qualifying provision that restricts the scope of discoverable records to those previously prohibited by the Legislature. In other words, the Court found that the amendment’s scope was not restricted to adverse medical incident records previously protected by statute:  “The prior statutory protections served only as an explanation for Amendment 7’s genesis, rather than a limitation on the amendment’s broad application. Moreover, in the cases since Buster, many courts have expanded upon Buster’s explanation by interpreting the amendment’s right as an absolute right to review adverse medical incident reports. Therefore, as the plain language of the amendment mandates, we hold that Amendment 7 was aimed at eliminating all discovery restrictions on ‘any records . . . relating to any adverse medical incident.’” (emphasis in original).

I. External Peer Review Reports

The first issue the Supreme Court decided was whether external peer review reports fall within the purview of Amendment 7 and whether external peer review committees can be a “similar committee” as articulated in the constitutional provision. The Court considered whether there are differences between documents prepared in compliance with Florida statutes and those “documents prepared or produced at the specific request of the defendant hospital’s attorney for use in litigation.” However, as stated previously, the Court recognized the clear and broad language of the amendment (i.e., “any records” and “any adverse medical incident”), and concluded that its scope went beyond adverse medical incident records previously protected by statute.  Thus, the Court determined that external peer review committees “cannot logically be excluded from Amendment 7’s application simply because they are in addition to the base-level, statutorily-required risk management committees. Such a result would be directly contrary to the intent and express words of Florida voters to have greater access to adverse medical incident records than they did before the passage of Amendment 7.” The Court explained that a contrary conclusion would allow defendants to avoid their obligations under Amendment 7 by simply outsourcing adverse medical incident reporting to third party committees separate from those required by Florida law.

II.“In the Course of Business” Requirement

Amendment 7 provides explicit definitions of its major terms, except for “in the course of business.” Until the Edwards opinion, courts had not interpreted the term, either. The defendant hospital in Edwards contended that the external peer review reports at issue were not created “in the course of business” because they were not drafted in accordance with the defendant hospital’s statutory documentation and reporting requirements, but rather were requested in anticipation of litigation.

However, the Florida Supreme Court disagreed, finding that just because the defendant hospital chose to outsource its peer review needs did not exempt third party reports from the scope of Amendment 7. If that were the case, a hospital could simply outsource all of its peer review and thereby avoid producing any records. Moreover, the records produced by an external peer review committee are the same category of reports that hospitals otherwise would maintain or receive in their course of business, even in the absence of any statutorily-mandated duty to do so.

III. Fact Work Product Privilege

The last issue the Court considered was whether the external peer review reports at issue were protected from discovery under the fact work product privilege. Again, the Court considered the plain language of Amendment 7 and its goal of providing a broad right to know about adverse medical incidents. The Court concluded that Amendment 7 nullifies any fact work product privilege that may have attached to adverse medical incident reports. Otherwise, the amendment could be rendered meaningless merely by having an attorney request records following an adverse medical incident.

 

Future of Amendment 7 Challenges

In Edwards, the Florida Supreme Court has severely limited potential objections to Amendment 7 discovery requests. However, the Edwards decision did not address opinion work product or the attorney-client privilege. Given the high unlikelihood of overruling good-faith opinion-word product or attorney-client privileges, defendants may find that no other objections would be valid with regard to records of “adverse medical incidents.”

 

blood-pressure-1573037_1920No, this is not déjà vu. On June 8, 2017, the Supreme Court of Florida struck down another legislative mechanism to limit damages in personal injury cases. In North Broward Hospital District v. Kalitan, the Supreme Court decided that non-economic damage caps on medical malpractice actions violate the Equal Protection Clause of the Florida Constitution. Non-economic damages are non-pecuniary harms such as permanent disability, disfigurement, blindness, loss of a limb, paralysis, trauma, or physical pain and suffering. While shocking to some, this decision is not entirely surprising due to the Supreme Court’s 2014 decision in Estate of McCall v. United States that invalidated non-economic damage caps for wrongful death actions under equal protection.

In 2003, the Florida Legislature decided to address the medical malpractice insurance crisis in Florida by enacting Florida Statute 766.118, which limits the non-economic damages that could be awarded in personal injury matters arising from medical negligence.  According to legislative findings at that time, as cited in the McCall opinion, the increase in medical malpractice liability insurance premiums resulted in “physicians leaving Florida, retiring early from the practice of medicine, or refusing to perform high-risk procedures, thereby limiting the availability of health care.” To counter this crisis, Florida Statute 776.118(2) limits non-economic damages awards for medical negligence of practitioners to $500,000 per claimant except where the negligence resulted in a permanent vegetative state, death, or catastrophic injury and a manifest injustice would occur unless increased damages are awarded.  In that case, damages may be awarded in an amount up to $1 million. Section 766.118(3) limits damages to $750,000 and $1.5 million, respectively, when the injury results from the negligence of non-practitioners. By enacting theses caps, the Legislature anticipated that physicians’ medical malpractice insurance premiums would drop, physicians would remain in Florida, not opt for early retirement, the number of physicians practicing without insurance would decrease, and the number of physicians who refused to perform high-risk procedures would decrease.

While it was the Legislature’s position that this alleged crisis was said to be of an “unprecedented magnitude,” the Supreme Court in Kalitan determined that the Legislature’s findings were not supported by the available data. In fact, in the years since the cap’s implementation, the Court found that the intended effects have not manifested themselves.  Instead, physicians have chosen to remain in Florida, but still opt not to carry malpractice insurance; medical malpractice premiums are the same, if not slightly higher; and insurance income increased.

Even if the data were accurate, the Supreme Court declared that the statute nonetheless arbitrarily infringes upon the constitutional guarantee of equal protection under the laws, because there is a lack of evidence supporting a direct correlation between non-economic damage caps and reduced malpractice premiums. Relying on its McCall decision, the Supreme Court explained that the damage caps have the effect of saving a minimal amount for many by imposing devastating costs on the most catastrophically injured, and those who sustain the greatest damage and loss. Doing so “offends the fundamental notion of equal justice under the law.” To illustrate this example, the Supreme Court offered a helpful hypothetical: “Plaintiff A suffers a moderate injury; therefore recovery is capped at $500,000 if caused by a practitioner and $750,000 if caused by a non-practitioner. Plaintiff B suffers a statutorily defined ‘catastrophic injury,’ such as the loss of a hand, and therefore recovery may be capped at $1 million if caused by a practitioner and $1.5 million if caused by a non-practitioner. Plaintiff C suffers a drastic injury, such as a permanent vegetative state, and therefore recovery is capped at $1 million if caused by a practitioner and $1.5 million if caused by a non-practitioner. Under these circumstances, plaintiff A has the best chance of being fully compensated, plaintiff B may have a chance of being fully compensated, and plaintiff C has utterly no chance of being fully compensated.”

While this ruling leaves defendants in medical malpractice actions vulnerable to higher jury verdicts, it is also a reminder to implement a best practices approach in defending these claims at the pre-suit phase. Implementing a protocol for pre-suit investigations, including a thorough background investigation of the claimant and claimant’s medical expert, as well as a medical review, and the policies and procedures of the defendant, is key in assessing liability and providing your client an informed basis to consider early resolution when appropriate. Knowing when to vigorously pursue a defense is just as important as recognizing when you are fighting a losing battle. Invest your time and resources wisely by litigating cases that have likelihood of success, and save your client’s time and expense on cases that don’t.