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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.

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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…
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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…
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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…
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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…
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