All entries for February 2017

Supreme Court rejects requested change from Frye to Daubert in evidence code.

Despite some local groundswell and a hearty minority recommendation to bring the State of Florida’s evidence code in line with Federal standards (as well as those of a majority of other jurisdictions), the Supreme Court of Florida last week declined to adopt a 2013 amendment passed by the state legislature which replaced Frye with Daubert as the standard for admission of expert witness testimony.  In re Amendments to the Fla. Evidence Code, No. SC16-181, 2017 Fla. LEXIS 338, at (Feb. 16, 2017).

Citing “grave” constitutional concerns (and teeing up, if not hinting at a potential future ruling of unconstitutionality), the Court found the Daubert standard used in the majority of jurisdictions to be a poor fit for Florida.

Possibly the more noteworthy issue is the interplay between the branches of the State’s government.  It would be a potentially interesting discussion (at least to civics wonks or those with a fascination for tedium) to have regarding the legislature’s rule-making authority compared to the Court’s inherent power to issue and administer rules for court procedure. 

As the Court mentions in its refusal to adopt another legislative change to the “same specialty” requirement regarding medical expert testimony, “we do not address the substantive/procedural issue raised here because whether the Legislature's amendments to section 766.102(5)(a) and repeal of section 766.102(14) somehow run afoul of the trial court's inherent power or this Court's rule-making authority must be left for a proper case or controversy and not decided in this rules case.” Id. (citations omitted).

Evidence code issues such as these can often be the downfall of an otherwise viable case.  It is critical to seek the advice of an experienced litigation attorney if you are concerned about your case.  Talk to one of the civil litigators at Icard Merrill today. 


Court deals a blow to lawmakers' 24 hour waiting period for abortions by ruling it likely to be found unconstitutional

The Supreme Court of Florida issued an opinion last week in the case of Gainesville Woman Care, LLC v. State, which deals a blow to the 2015 “Mandatory Delay Law,” which requires a 24 hour waiting period for women seeing an abortion.  No. SC16-381, 2017 Fla. LEXIS 340 (Feb. 16, 2017).

In determining that an injunction preventing enforcement of the law is appropriate given a “substantial likelihood of success” in the attempt to defeat the law, the Court dismissed a list of state interests found potentially compelling by the First District, such interests to include:

. . . whether, in passing the privacy amendment in 1980, voters intended to deprive Florida and its citizens of the benefits of advances in medical knowledge and evolutions in federal law recognizing increasingly compelling state interests arising from, among other factors, the potentiality of life uniquely represented by the human fetus. Likewise, the trial court did not address the evidence of intent reflected in the State's many post-1980 laws and regulations specific to abortion; nor the evidence of voter intent reflected in the 2004 adoption of article X, section 22, of the Florida Constitution, which in effect overruled North Florida Women's and authorized a requirement of parental notice of termination of a minor's pregnancy. Id. at 282. 

. . . providing women a short time to reflect privately after receiving required relevant information, in maintaining the integrity of the medical profession by making that post-informed reflective time free from influence by a physician or clinic personnel, in protecting the unique potentiality of human life, in protecting the organic law of Florida from interpretations and impacts never contemplated or approved by Floridians or their elected representatives, and in protecting the viability of a duly-enacted state law.

Id.  Despite the First District’s clear attempt to uphold the will of the majority of voters and of their elected officials in the arena of abortion, the Supreme Court again looked to the fundamental right of a woman to her privacy and stated that none of the reasons listed by the First District could be considered compelling. 

Most interestingly, since the Court expressed in such powerful language the fundamental nature and broad expanse of a person’s right to bodily autonomy and privacy was its dismissal of any rights of the unborn child, described as the “potentiality of life uniquely represented by the human fetus” by stating “[s]uch social and moral concerns have no place in the concept of informed consent.”  Id.

It seems likely this will only be one battle in the ongoing conflict between lawmakers, the people of the State of Florida, and the Supreme Court of Florida continue in the context of constitutional rights. 


Icard Merrill Attorney Worth Graham Featured in the SCBA Docket

Icard Merrill Attorney Worth Graham recently wrote an article on securities arbitration and litigation as a primer for attorneys and clients alike.  The article can be found here and was also featured in a recent edition of the Sarasota County Bar Association's Docket, which you can find here

The article is a great read for those either curious to learn some introductory information about the workings of securities arbitration and litigation or for attorneys trying to spot issues outside of their practice area for referral to an experienced attorney.  Give it a read and, if you are in need of advice regarding securities law, contact the attorneys of Icard Merrill's securities arbitration and litigation department today. 


Deceased mother loses attorney-client privilege as to her reasons for disinheriting four of her children.

For those that don’t practice in or aren’t familiar with the nuances of attorney-client privilege in the area of trusts and estates, it may come as a shock to find that an otherwise properly preserved attorney-client privilege protection can simply be swept away by the court if questions arise regarding the will after the client has passed.

In the case of Vasallo v. Bean, the Third District outlined a clear history of legal precedent which sets forth the policy rationale for its holding; that an attorney cannot maintain a claim of attorney-client privilege (as is otherwise his or her duty under the rules of ethics) in the face of questions regarding the intent of the client in making a will when there is a dispute about that will after her death.  41 Fla. L. Weekly D2407 (Fla. 3d DCA October 26, 2016). 

In Vasallo, a mother of five disinherited four of her five children in a will drafted just one year after she had a previous will drafted (the previous will included all five children as beneficiaries).  Not surprisingly, the four left out took issue with the fifth—now sole beneficiary—and the mother’s new will.  The attorney for the mother valiantly attempted under attorney-client privilege to avoid answering questions about the mother’s wishes and motives in requesting the change, but was ordered to provide the answers and reveal his confidential communications with his deceased client.  As may have been a surprise to the attorney, the Court noted apparently long-standing rule of law that “[a]n attorney's testimony about a Will drafted by him, after the death of the testator, is not ordinarily privileged.” Vasallo v. Bean, 41 Fla. L. Weekly D2407 (Fla. 3d DCA October 26, 2016) quoting In re Estate of Marden, 355 So. 2d 121, 127 (Fla. 3d DCA 1978).

This is an important caveat to the normally confidential environment of the attorneys’ office that should be made clear to clients by practitioners and should be recalled by clients wanting to make a will—that the client’s statements about her intentions could be brought to light after her death. 

If you have questions about your will or want advise about estate planning, be sure to speak to the Trust and Estates department of Icard Merrill today.


Statutory caps on non-economic "pain and suffering" damages in medical malpractice cases declared unconstitutional.

The Second District Court of Appeals doubled down on a previous ruling in North Broward Hospital v. Kalitan, 174 So. 3d 403 (Fla. 4th DCA 2015), review granted, No. SC15-1858 by stating that the trial court correctly followed the Fourth District’s ruling that medical malpractice personal injury case statutory caps on non-economic damages violates the equal protection provision of the Florida Constitution.   Port Charlotte HMA, LLC v. Suarez, 41 Fla. L. Weekly D2393 (Fla. 2d DCA October 26, 2016).   

Both Kalitan and Suarez represent an extension of the Supreme Court of Florida’s ruling that similar statutory caps imposed in medical negligence wrongful death claims were likewise unconstitutional in Estate of McCall v. United States.  134 So. 3d 894, 897 (Fla. 2014).

This appears to be the judiciary striking back against the attempts of lawmakers to limit the amount of damages awardable on the basis of “soft” claims in medical negligence cases—claims that can make the practice of medicine and obtaining and providing coverage for malpractice insurance for physicians in the State of Florida difficult and costly. 

It will be interesting to see how many dominoes continue to fall as other statutory caps may find themselves in the judiciary’s crosshairs.

If you have a question about your case, about the types and amounts of damages you could be awarded, or questions about whether you may have a case at all, consult with the experienced litigation attorneys of Icard Merrill today.