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August 14, 2018

2014's biggest-impact law cases

Art Levy | 12/26/2014

When the Florida Supreme Court ruled in March that caps on non-economic damages in wrongful death medical malpractice cases were unconstitutional, Mark Delegal feared the worst. An insurance industry lobbyist and an attorney who specializes in insurance and health care law, the Holland & Knight partner says his first thought was: "Oh my gosh. This is bad."

Delegal expected a quick boost in medical malpractice cases filed statewide, but so far that hasn't happened. "It's still a wait-and-see situation," he says.

Ted Babbitt, an attorney at Babbitt Johnson Osborne & Le Clainche in West Palm Beach, doesn't anticipate Delegal having to wait too much longer to see an impact from McCall v. United States, a case involving Michelle McCall, a Florida woman who died in 2006 after delivering a healthy baby. It was determined that her death, from blood loss, was preventable. Her family was awarded $1 million, the most allowed under the cap, but the Florida Supreme Court heard the case last year and killed the cap.

The decision has medical malpractice attorneys preparing for more work. Babbitt says it doesn't make financial sense to accept most med-mal cases in a capped environment, which Florida has had since the early 2000s. He says attorneys typically spend two years and $200,000 litigating each med-mal case.

"Those of us who have taken medical malpractice cases for years and years, we pulled back because of the caps," says Babbitt. "But as a consequence of the McCall case, we have started looking for more of those cases. It just wasn't economically feasible to handle a lot of medical malpractice cases when those caps were in existence. At the very minimum, we changed our criteria for the cases we would accept."

The court's decision was fairly direct, Babbitt says, and he doesn't see how The Legislature can pass another medmal cap law that would stand up to the court's decision.

"I think the insurance companies are going to have to live with this," he says. "More lawyers like me are going to take more malpractice cases, and they're going to have to earn the premiums that they charge."

Delegal doesn't see the Legislature bringing back caps this year, but he does expect that lawmakers will continue looking for ways to cut medical malpractice cases and costs statewide.

Same-Sex Marriage

According to Freedom to Marry, a New York-based same-sex marriage advocacy group, eight cases involving the legality of same-sex marriage were heard in Florida last year, including at least one that could go before the Florida Supreme Court. One federal case in particular, Brenner v. Scott, has the potential to impact the ability for same-sex couples to marry as early as this month.

However, Don Hayden, a partner in Berger Singer man's Miami office, thinks the U.S. Supreme Court will eventually have to resolve the matter. "I see that more than likely this is going to be resolved at the federal level," he says. "The Florida Supreme Court will likely defer to the U.S. Supreme Court, which is going to have a lot of pressure to take this issue up in the next term."

Something Fishy

The highest court in the country is considering a Manatee County case that revolves around three missing grouper.

This fish story began in 2007, when a Florida Fish and Wildlife Commission officer boarded John Yates' commercial fshing boat in the Gulf of Mexico. Yates, a Cortez-based fisherman, had more than 3,000 fish on board, but 72 grouper, suspected of being undersized, caught the officer's attention. Yates was ordered back to shore for further inspection of the 72 fish. The next day, he returned to port with 69 fish suspected of measuring shorter than the 20-inch minimum — not the 72 he was ordered to bring back.

Yates denied throwing the three missing fsh overboard and said that even if he did, he only deserved a small fine or some added restriction on his commercial fishing permit. Instead, three years after the incident, the Department of Justice charged him with violating the Sarbanes- Oxley Act's "anti-shredding" rules, which were originally approved following the Enron scandal to prevent white-collar criminals from destroying documents. Yates was convicted in 2012 and served 30 days in jail followed by three years of supervised release.

Cause of Action, a Washington, D. C.-based government accountability group, took up Yates' cause and asked the U. S. Supreme Court to clarify the federal government's reach under Sarbanes-Oxley. Justices, at times laughing at their own fishing puns, heard testimony on the case in November. At one point, Chief Justice John Roberts interrupted a government attorney, who was arguing that Yates had engaged in a "convoluted cover-up scheme," and told the attorney: "You make him sound like a mob boss or something."

If Yates wins, the government says it will lose one of its best weapons against defendants who destroy evidence, from documents to drugs and guns.

Judicial Campaigns

When Lanell Williams-Yulee announced her candidacy for a Hillsborough County court judgeship in 2009, she signed a mass-mail campaign fundraising letter that asked that contribution checks be made payable to "Lanell Williams-Yulee Campaign for County Judge." The solicitation violated a canon of Florida's Judicial Code of Conduct that prohibits judicial candidates from personally soliciting campaign funds. That led to a Florida Supreme Court reprimand, which she challenged, saying it infringed on her right to free speech.

The case, Williams-Yulee v. The Florida Bar, is currently being considered by the U.S. Supreme Court. "Twenty-two Lanell Williams-Yulee states have a ban on direct judicial candidate fundraising similar to Florida," says Jon Mills, a law professor at the University of Florida's Levin College of Law and an attorney at Boies, Schiller & Flexner. "If the U.S. Supreme Court finds these direct solicitation prohibitions unconstitutional, expect the nature of judicial campaigns to change dramatically."

Voting Districts

The Florida Supreme Court will determine the legal validity of Florida's 2016 congressional districting maps in the League of Women Voters v. Ken Detzner. The league and other groups contend the Republican-run Legislature violated rules against gerrymandering when it redrew Florida's congressional maps in 2012. The court's decision will likely impact the 2016 congressional and presidential elections. The state's 2-year-old redistricting battle included another important case that went before the Florida Supreme Court in 2014: Bainter v. League of Women Voters. Pat Bainter, who has a Gainesville-based consulting company called Data Targeting, is accused of working with Republican legislators to design voting districts that would help Republican candidates get elected. The court ordered Bainter to release 538 pages of emails exchanged with political operatives during the redistricting process.

Self-Defense Denied

Michael Dunn tested the limits of Florida's stand-yourground law — and lost. The 47-year-old Brevard County man, visiting Jacksonville to attend a wedding two years ago, shot and killed 17-year-old Jordan Davis, an unarmed high school student, during an argument over loud music in a convenience store parking lot. Dunn, who said later that he thought Davis had a gun, fired into the vehicle where Davis sat, hitting the teenager in the legs, lungs and heart.

Dunn, whose defense cited the language of Florida's stand-your-ground law during closing arguments, will spend the rest of his life in prison without the possibility of parole. During sentencing, 4th Judicial Circuit Court Judge Russell Healey said Dunn's case exemplified how the state's stand-your-ground law is so often misunderstood and used as an excuse for violence. "We should remember that there's nothing wrong with retreating and de-escalating the situation," the judge said.

Tobacco Award

In July, an Escambia County jury awarded $23.6 billion in punitive damages to a Florida widow whose husband died of lung cancer 18 years ago. The R.J. Reynolds tobacco company is appealing the decision, saying the verdict "goes far beyond the realm of reasonableness and fairness." The case — involving Cynthia Robinson of Pensacola and the 1996 death of her husband, Michael Johnson Sr., a heavy smoker and father of two, — was once part of a class-action lawsuit that won a $145-billion verdict. That verdict was overturned by the Florida Supreme Court in 2006, when the court also ruled that the smokers could not file class-action lawsuits against tobacco companies but were free to sue the companies individually. Robinson's suit has been in the courts since 2008.

Under Oath

Before a March decision by the Florida Supreme Court in State Farm v. Curran, insurance companies could compel a policyholder to answer questions under oath and hand over documents before the company had to pay a claim. By not cooperating, the policyholder essentially Forfeited any right to the claim. Not any more. "Curran totally changes the landscape," says Ronald L. Kammer, an insurance law attorney and partner of Hinshaw & Culbertson's Coral Gables office. "Before Curran, if you wanted benefits, you had to comply. It's not an automatic denial anymore." Now, to deny the claim, the insurance company has to prove that the policyholder's uncooperative conduct resulted in the company not having Enough information to complete the claim. Kammer says insurance companies often used the "examination under oath" maneuver when fraud was suspected.

Contraception Coverage

In October, the U.S. District Court for the Middle District of Florida ruled that Ave Maria School of Law in Naples does not have to abide by a federal Health and Human Services mandate that faith-based employers must provide workers with insurance coverage that covers contraception and abortioninducing drugs. The Catholic law school, which objected to the mandate for religious reasons, had been facing millions of dollars in fines for not offering the coverage.

Chinese Drywall

Last year brought some good news for the thousands of Florida homeowners affected by defective Chinese drywall. After a late 2013 ruling in the 3rd District Court of Appeal in Miami, Florida builders and homeowners finally started getting checks last year — as many as nine years after problems with the drywall were first reported. "The bulk of the major dollars that have been distributed both to builders who repaired and homeowners who wanted to repair occurred in 2014," says Hilarie Bass, Greenberg Traurig's co-president. The ruling, against Knauf, a German company that manufactured drywall in China, also enables Bass and other attorneys to seek damages from the Taishan Gypsum Co., a Chinese company that produced about half of the defective drywall that ended up in more than 40,000 homes in Florida and other states. So far, the company has refused to pay anything, but Bass keeps trying despite the fact that Chinese companies rarely abide by U. S. court decisions. "We're now going to go quantify the damage amount on the behalf of multiple builders," Bass says. "We're still hopeful that we'll be successful in trying to find Chinese assets somewhere around the world that we can execute upon and recover."

Tags: Politics & Law

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