In Re: Amendments to the Florida Evidence Code

Supreme Court of Florida
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No. SC16-181
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IN RE: AMENDMENTS TO THE FLORIDA EVIDENCE CODE.
[February 16, 2017]
PER CURIAM.
We have for consideration the regular-cycle report1 of The Florida Bar’s
Code and Rules of Evidence Committee (Committee), concerning legislative
changes to the Florida Evidence Code and to section 766.102, Florida Statutes
(2012). We have jurisdiction,2 and, as discussed below, we decline to adopt, to the
extent they are procedural, any of the legislative changes addressed in the
Committee’s report.
BACKGROUND
Prior Amendments to the Florida Evidence Code
1. See Fla. R. Jud. Admin. 2.140(b).
2. See art. V, § 2(a), Fla. Const.
It has been this Court’s policy to adopt, to the extent they are procedural,
provisions of the Florida Evidence Code as they are enacted and amended by the
Legislature.3 However, on occasion the Court has declined to adopt legislative
changes to the Evidence Code because of significant concerns about the
amendments, including concerns about the constitutionality of an amendment.4 In
addition, the Court has declined to follow the Committee’s recommendation to
adopt, to the extent it may be procedural, legislation creating section 766.102(12),
3. See In re Amends. to Fla. Evidence Code, 782 So. 2d 339, 342 (Fla.
2000) (recognizing Court’s policy to adopt amendments to the Code to the extent
they are procedural, but following Committee’s recommendation not to adopt one
amendment) (citing In re Fla. Evidence Code, 372 So. 2d 1369 (Fla. 1979)
(adopting Evidence Code enacted by Legislature to the extent it is procedural),
clarified, In re Fla. Evidence Code, 376 So. 2d 1161 (Fla. 1979)); see also In re
Amends. to Fla. Evidence Code, 53 So. 3d 1019 (Fla. 2011); In re Amends. to Fla.
Evidence Code, 960 So. 2d 762 (Fla. 2007); In re Amends. to Fla. Evidence
Code—Section 90.104, 914 So. 2d 940 (Fla. 2005); Amends. to Fla. Evidence
Code, 891 So. 2d 1037 (Fla. 2004); In re Amends. to Fla. Evidence Code, 825 So.
2d 339 (Fla. 2002); In re Fla. Evidence Code, 675 So. 2d 584 (Fla. 1996); In re Fla.
Evidence Code, 638 So. 2d 920 (Fla. 1993); In re Amend. of Fla. Evidence Code,
497 So. 2d 239 (Fla. 1986); In re Amend. of Fla. Evidence Code, 404 So. 2d 743
(Fla. 1981).
4. See, e.g., In re Amends. to Fla. Evidence Code, 144 So. 3d 536 (Fla.
2014) (declining to follow the Committee’s recommendation to adopt section
90.5021, Florida Statutes (2014), which establishes a fiduciary lawyer-client
privilege); In re Amends. to Fla. Evidence Code, 782 So. 2d at 341-42 (declining
to adopt amendments to section 90.803(22), Florida Statutes (1997), which allows
the admission of former testimony although the declarant is available as a witness,
in part because of concerns about its constitutionality).
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Florida Statutes, which is not a part of the Florida Evidence Code. See In re
Amends. to Fla. Evidence Code, 144 So. 3d 536, 537 (Fla. 2014).
Legislative Changes at Issue
The legislative changes at issue in this case are those enacted since this
Court considered the Committee’s 2013 regular-cycle report. See In re Amends. to
Fla. Evidence Code, 144 So. 3d at 536. In this case, by a vote of 16-14, a majority
of the Committee recommends that the Court not adopt, to the extent it is
procedural, chapter 2013-107, sections 1 and 2, Laws of Florida (Daubert
Amendment), which amended sections 90.702 (Testimony by experts) and 90.704
(Basis of opinion testimony by experts), Florida Statutes (2012), of the Evidence
Code to replace the Frye5 standard for admitting expert opinion evidence with the
Daubert6 standard. In addition to a separate majority report on the Daubert
Amendment, the Committee provides a minority report urging the Court to adopt
the Daubert Amendment. The Committee also recommends, by a vote of 24-0-1,
that the Court not adopt, to the extent it is procedural, chapter 2013-108, section 2,
Laws of Florida (Same Specialty Amendment), which amended section 766.102
5. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Bundy v. State, 471
So. 2d 9 (Fla. 1985) (adopting Frye standard); Stokes v. State, 548 So. 2d 188 (Fla.
1989) (same).
6. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
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(Medical negligence; standards of recovery; expert witness), Florida Statutes
(2012), to require a standard-of-care expert witness in a medical malpractice action
to specialize in the same specialty as the health care provider against whom or on
whose behalf the testimony is offered. Finally, the Committee recommends, by a
vote of 24-0-1, that the Court adopt, to the extent it is procedural, chapter 2014-
200, section 1, Laws of Florida, which amended section 90.803(24), Florida
Statutes (2013) (Hearsay exceptions; availability of declarant immaterial; Hearsay
exception; statement of elderly person or disabled adult) of the Evidence Code, the
hearsay exception relating to reports of abuse by elderly persons or disabled adults.
The Board of Governors of The Florida Bar approved the Committee’s
recommendations.
Consistent with Florida Rule of Judicial Administration 2.140(b)(2), before
filing its report with the Court, the Committee published its recommendations for
comment. According to the Committee’s report, the Committee received eighty-
one comments in support of the recommendation not to adopt the Daubert
Amendment. The Committee received twenty-nine comments opposing that
recommendation. The Committee also received two comments supporting the
recommendation not to adopt the Same Specialty Amendment and no comments
against that recommendation. The Committee did not receive any comments
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addressing its recommendation to adopt the changes to section 90.803(24) of the
Evidence Code.
After the Committee filed its report, the Court published the Committee’s
recommendations for comment. The Court received fifty-six comments in favor of
the Committee’s recommendation not to adopt the Daubert Amendment and one
hundred thirty-one comments in opposition to the Committee’s recommendation.7
All nine comments filed with the Court addressing the Committee’s
recommendation not to adopt the Same Specialty Amendment support that
recommendation. No comments were filed with the Court concerning the
amendments to section 90.803(24). The Committee filed a response to the
comments filed with the Court. The Court also heard oral argument in this case.
After considering the numerous filings in this case, and having had the
benefit of oral argument, for the reasons discussed below, we follow the
Committee’s recommendation and decline to adopt, to the extent they are
procedural, the changes to sections 90.702 and 90.704 of the Evidence Code made
by the Daubert Amendment. Also, as recommended by the Committee, we decline
7. Of those one hundred thirty-one comments, seventy-seven are form
emails from “small business owners” repeating the same request that the Court
“retain the Daubert expert witness standard that the Florida legislature passed in
2013.”
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to adopt, to the extent they are procedural, the amendments to section 766.102,
Florida Statutes, made by the Same Specialty Amendment. However, as further
explained below, we decline to follow the Committee’s recommendation to adopt
the changes made to section 90.803(24).
DISCUSSION
Daubert Amendment
The Daubert Amendment amended sections 90.702 and 90.704, Florida
Statutes (2012), to change the standard of admissibility for scientific expert
evidence from the Frye standard to the Daubert standard and the standard found in
Federal Rule of Evidence 702. See ch. 2013-107, §§ 1 - 2, Laws of Fla. The Frye
test only applies to expert testimony based upon new or novel scientific evidence,
and “in order to introduce expert testimony deduced from a scientific principle or
discovery, the principle or discovery ‘must be sufficiently established to have
gained general acceptance in the particular field in which it belongs.’ ” Flanagan
v. State, 625 So. 2d 827, 828 (Fla. 1993) (quoting Frye v. United States, 293 F.
1013, 1014 (D.C. Cir. 1923)).8 In Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), the United States Supreme Court held that the Federal Rules
8. The Court is aware that on October 20, 2016, the District of Columbia
Court of Appeals, in Motorola Inc. v. Murray, 147 A.3d 751 (D.C. 2016), rejected
application of the Frye standard for the admissibility of scientific testimony in
favor of Federal Rule of Evidence 702.
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of Evidence superseded Frye’s general acceptance test for the admissibility of
scientific evidence. Id. at 586-87. In addition, in interpreting Federal Rule of
Evidence 702, Daubert provides that “the trial judge must ensure that any and all
scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at
589. Federal Rule of Evidence 702, as currently promulgated, intends to ensure
reliability of scientific opinion evidence with the following requirements:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods;
and
(d) the expert has reliably applied the principles and methods to the
facts of the case.
Fed. R. Evid. 702.
In 2013, Florida’s Legislature rejected the longstanding Frye standard and
adopted the Daubert standard and Federal Rule of Evidence 702 with two
amendments to the Evidence Code. First, the Legislature amended section 90.702
to mirror Federal Rule of Evidence 702 as follows:
If scientific, technical, or other specialized knowledge will
assist the trier of fact in understanding the evidence or in determining
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a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify about it in the form of
an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and
methods; and
(3) The witness has applied the principles and methods reliably
to the facts of the case; however, the opinion is admissible only if it
can be applied to evidence at trial.
Ch. 2013-107, § 1, Laws of Fla. Next, the Legislature amended section 90.704 as
follows:
The facts or data upon which an expert bases an opinion or
inference may be those perceived by, or made known to, the expert at
or before the trial. If the facts or data are of a type reasonably relied
upon by experts in the subject to support the opinion expressed, the
facts or data need not be admissible in evidence. Facts or data that are
otherwise inadmissible may not be disclosed to the jury by the
proponent of the opinion or inference unless the court determines that
their probative value in assisting the jury to evaluate the expert’s
opinion substantially outweighs their prejudicial effect.
Ch. 2013-107, § 2, Laws of Fla.
The Committee recommends the Court not adopt the Daubert Amendment,
to the extent it is procedural. In support of its recommendation, both the
Committee and commenters who support the recommendation raised what we
consider “grave constitutional concerns.” Those concerns include undermining the
right to a jury trial and denying access to the courts. While the Court does not
address the constitutionality of a statute or proposed rule within the context of a
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rules case,9 the fact that there may be “grave concerns about the constitutionality of
the amendment” has been a basis previously for the Court not adopting an
amendment to the Evidence Code to the extent it is procedural. See In re Amends.
to Fla. Evidence Code, 782 So. 2d 339, 342 (Fla. 2000). Accordingly, having
heard oral argument and carefully considered the Committee’s recommendation
and the numerous comments both submitted to the Committee and filed with the
Court, we decline to adopt the Daubert Amendment to the extent that it is
procedural, due to the constitutional concerns raised, which must be left for a
proper case or controversy.
Same Specialty Amendment
The Same Specialty Amendment amended section 766.102(5)(a), Florida
Statutes (2012), to require a standard-of-care expert witness in a medical
malpractice action to specialize in the same specialty, rather than the same or
similar specialty,10 as the health care provider against whom or on whose behalf
9. See, e.g., In re Amends. to Fla. Evidence Code, 144 So. 3d at 538
(Pariente, J., concurring in part and dissenting in part); In re Amend. to Fla.
Evidence Code, 825 So. 2d at 341; In re Amends. to Fla. Evidence Code, 782 So.
2d at 341; In re Amends. to Fla. Rules of Crim. Pro.—Final Arguments, 957 So. 2d
1164, 1167 (Fla. 2007).
10. Prior to the Same Specialty Amendment, section 766.102(5)(a), Florida
Statutes, required an expert testifying about the prevailing standard of care in a
medical malpractice action to (1) specialize in the same specialty as the health care
provider against whom or on whose behalf the testimony is offered, or (2)
specialize in a similar specialty that includes the evaluation, diagnosis, or treatment
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the testimony is offered. See ch. 2013-108, § 2, Laws of Fla. The amendment also
repealed section 766.102(14), Florida Statutes (2012), which recognized a trial
court’s authority to disqualify or qualify an expert witness on grounds other than
the qualifications in that section.11 See ch. 2013-108, § 2, Laws of Fla. The
Committee, the Board of Governors, and all those who commented on the Same
Specialty Amendment urge the Court not to adopt that legislation, to the extent it is
procedural. Consistent with the Committee’s recommendation, we decline to
adopt the Same Specialty Amendment, for the same reasons we declined to adopt
section 766.102(12), which requires a standard-of-care expert witness to hold the
same state license as the health care provider against whom, or on whose behalf,
the expert is testifying or to have a valid expert witness certificate. See In re
Amends. to Fla. Evidence Code, 144 So. 3d at 537 (declining to adopt chapter
2011-233, section 10, Laws of Florida, creating section 766.102(12), because of
concerns that the statute “is unconstitutional, [has] a chilling effect on the ability to
obtain expert witnesses, and is prejudicial to the administration of justice”).
of the medical condition that is the subject of the claim and have the prior
experience treating similar patients. The Same Specialty Amendment removed the
similar specialty option for qualifying a standard-of-care expert witness from the
statute.
11. Before its repeal, section 766.102(14), Florida Statutes, provided that
section 766.102 did “not limit the power of the trial court to disqualify or qualify
an expert witness on grounds other than the qualifications in this section.”
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The Committee and commenters in this case contend that requiring a
standard-of-care expert witness to specialize in the same specialty, rather than the
same or similar specialty, as the health care provider against whom or on whose
behalf the testimony is offered has “a chilling effect on the ability to obtain expert
witnesses,” making it more difficult for a victim of medical negligence to bring a
medical malpractice action. This raises concerns that, like the same-license
requirement of section 766.102(12), the same-specialty requirement limits access
to courts and is prejudicial to the administration of justice. See id.; cf. Kukral v.
Mekras, 679 So. 2d 278, 284 (Fla. 1996) (recognizing that “medical malpractice
statutory scheme must be interpreted liberally so as not to unduly restrict a Florida
citizen’s constitutionally guaranteed access to courts, while at the same time
carrying out the legislative policy of screening out frivolous lawsuits and
defenses”).
In addition to the concerns raised by the Committee and the commenters, the
section 766.102(5)(a) same-specialty requirement and the various other section
766.102 expert-witness requirements12 are not part of chapter 90, Florida Statutes,
12. See, e.g., § 766.102(5)(b), Fla. Stat. (2016) (providing requirements for
expert witnesses testifying on the standard of care for general practitioners); §
766.102(6), Fla. Stat. (providing the requirements for expert witnesses testifying
on the standard of care for nurses and other medical support staff); § 766.102(7),
Fla. Stat. (providing the requirements for expert witnesses testifying on the
standard of care as to administrative and other nonclinical issues in actions against
hospitals or other medical facilities); § 766.102(9), Fla. Stat. (providing the
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the Florida Evidence Code. See In re Fla. Evidence Code, 372 So. 2d 1369 (Fla.
1979) (adopting, as the Court’s rules of evidence, the Evidence Code enacted by
the Legislature, in part, to ensure that rules of evidence were codified in one place
and were no longer “derived from multiple sources,” including case law, rules
adopted by the Court, and statutes enacted by the Legislature), clarified, In re Fla.
Evidence Code, 376 So. 2d 1161 (Fla. 1979).13 Rather, the section 766.102
requirements, none of which this Court has adopted,14 are part of the legislative
scheme for medical malpractice actions codified in chapter 766, Florida Statutes.
requirements for expert witnesses testifying on the standard of care for emergency
room physicians).
13. See also Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 102.1
(2016 ed.) (recognizing that Court adopts, to the extent procedural, provisions of
the Evidence Code as they are adopted and amended by the Legislature “to avoid
having the evidence rules scattered in piece-meal fashion in various statutes and
rules of procedures” and to have “a single comprehensive set of rules”).
14. Prior to the Committee’s 2013 recommendation to adopt section
766.102(12), see In re Amends. to the Fla. Evidence Code, 144 So. 3d at 536, the
Committee had only made recommendations to the Court concerning legislative
changes to the Evidence Code. The Committee had never made recommendations
concerning any of the section 766.102 expert-witness requirements. See Ehrhardt,
supra, at § 102.1 (as reporter and primary drafter of the Florida Evidence Code and
first chair of the Committee, recognizing that Committee’s recommendation
concerning the section 766.102(12) expert-witness requirement “was unique”
because “[s]ince its inception, the Committee believed its jurisdiction was limited
to provisions of the Evidence Code” and noting that, for example, “the many
amendments to the accident report privilege in section 316.066 and the rape shield
statute in section 794.022 were never within scope of the [C]ommittee’s
recommendations”).
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It is likewise significant that this Court also has never adopted, to the extent
it may be procedural, the section 766.102(14), Florida Statutes (2012), recognition
of a trial court’s authority to qualify or disqualify an expert witness in a medical
malpractice case on grounds other than those specified in section 766.102.
Therefore, there is no reason for this Court to now adopt the repeal of that
legislation to the extent that repeal might impact court procedure. Finally, 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. See In re Amends. to Fla. Evidence Code, 782 So. 2d at 341.
Amendments to Section 90.803(24)
Chapter 2014-200, section 1, Laws of Florida, amended section 90.803(24)
(Hearsay Exceptions; availability of declarant immaterial; Hearsay exception;
statement of elderly person or disabled adult), Florida Statutes, the hearsay
exception relating to reports of abuse by elderly persons or disabled adults. The
amendment to section 90.803(24) removes the alternative requirement that an
elderly person or disabled adult testify, only requiring that such individuals be
unavailable to do so. The Committee recommends that the Court adopt that
legislation, to the extent it is procedural.
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Notwithstanding its recommendation, the Committee notes in its report that
the statutory change raises constitutional issues: “The amended statute would
remain unconstitutional as to testimonial[15] statements in criminal cases where
there has been no opportunity for prior cross-examination while it eliminates
(potentially) constitutionally permissible application to nontestimonial[16]
statements in the criminal context and all applicable statements in civil cases.”
While the Committee concludes that case law, including Crawford v. Washington,
541 U.S. 36 (2004), and State v. Hosty, 944 So. 2d 255 (Fla. 2006), imposes the
requirement of an opportunity for cross-examination regarding testimonial
statements in criminal cases, we decline to adopt this amendment, to the extent it is
procedural, in light of constitutional concerns. See In re Amendments to Fla.
Evidence Code, 782 So. 2d at 342 (declining to adopt chapter 98-2, section 1,
Laws of Florida, amending section 90.803(22), Florida Statutes, which allows the
15. “Testimonial” statements include but are not limited to “material such as
affidavits, custodial examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants would reasonably
expect to be used prosecutorially” as well as extrajudicial statements “contained in
formalized testimonial materials, such as affidavits, depositions, prior testimony, or
confessions.” Crawford v. Washington, 541 U.S. 36, 51-52 (2004).
16. “Nontestimonial” statements include those that, objectively considered,
were given to, for example, police or a 911 operator describing what was actually
happening at the time and to enable police assistance to meet an ongoing
emergency. See Davis v. Washington, 547 U.S. 813, 826-27 (2006).
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admission of former testimony although the declarant is available as witness, in
part because of concerns about its constitutionality).
CONCLUSION
Accordingly, for the forgoing reasons, we decline to adopt, to the extent they
are procedural, chapters 2013-107, sections 1 and 2; 2013-108, section 2; and
2014-200, section 1, Laws of Florida.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
POLSTON, J., concurs in part and dissents in part with an opinion, in which
CANADY, J., concurs.
LAWSON, J., did not participate.
POLSTON, J., concurring in part and dissenting in part.
I respectfully dissent because, unlike the majority, I would adopt the Daubert
standard as the Legislature amended the Florida Evidence Code in 2013.17 The
majority rejects replacing the Frye standard with the Daubert standard and gives its
reason for doing so as “grave constitutional concerns” about the Daubert standard,
including undermining the right to a jury trial and denying access to courts.
However, the United States Supreme Court decided Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), in 1993, and the standard has been
17. I agree with the majority’s decision to decline to adopt the same
specialty and hearsay exception amendments.
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routinely applied in federal courts ever since. The clear majority of state
jurisdictions also adhere to the Daubert standard. See 1 McCormick on Evidence §
13 (7th ed. June 2016 Supp.). In fact, there are 36 states that have rejected Frye in
favor of Daubert to some extent. See Charles Alan Wright & Victor Gold, 29
Federal Practice and Procedure § 6267, at 308-09 n.15 (2016). Has the entire
federal court system for the last 23 years as well as 36 states denied parties’ rights
to a jury trial and access to courts? Do only Florida and a few other states have a
constitutionally sound standard for the admissibility of expert testimony? Of
course not.
As a note to the federal rule of evidence explains, “[a] review of the caselaw
after Daubert shows that the rejection of expert testimony is the exception rather
than the rule.” Fed. R. Evid. 702 advisory committee’s note to 2000 amendment.
“Daubert did not work a ‘seachange over federal evidence law,’ and ‘the trial
court’s role as gatekeeper is not intended to serve as a replacement for the
adversary system.’ ” Id. (quoting United States v. 14.38 Acres of Land, 80 F.3d
1074, 1078 (5th Cir. 1996)).
Furthermore, I know of no reported decisions that have held that the
Daubert standard violates the constitutional guarantees of a jury trial and access to
courts. To the contrary, there is case law holding that the Daubert standard does
not violate the constitution. See, e.g., Junk v. Terminix Int’l Co., 628 F.3d 439,
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450 (8th Cir. 2010) (rejecting legal merit of the constitutional claim “that the
district court violated [appellant’s] Seventh Amendment right to a jury trial by
improperly weighing evidence in the course of its Daubert rulings” and explaining
that “Junk does not cite any case for the notion that a proper Daubert ruling
violates a party’s right to a jury trial”); E.I. du Pont de Nemours & Co. v.
Robinson, 923 S.W.2d 549, 558 (Tex. 1995) (rejecting claim “that allowing the
trial judge to assess the reliability of expert testimony violates [the parties’] federal
and state constitutional rights to a jury trial by infringing upon the jury’s inherent
authority to assess the credibility of witnesses and the weight to be given their
testimony”); see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142-43 (1997)
(rejecting “argument that because the granting of summary judgment in this case
was ‘outcome determinative,’ it should have been subjected to a more searching
standard of review” and explaining that, while “disputed issues of fact are resolved
against the moving party[,] . . . the question of admissibility of expert testimony is
not such an issue of fact”).
Accordingly, the majority’s and the committee’s “grave constitutional
concerns” regarding the Daubert standard are unfounded. We should adopt the
Daubert standard as amended in the Florida Evidence Code by the Legislature in
2013.
CANADY, J., concurs.
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Original Proceedings – Florida Bar Code and Rules of Evidence Committee
Gregory Paul Borgognoni, Chair, Code and Rules of Evidence Committee,
Borgognoni Law, PL, Coral Gables, Florida; Peter Anthony Sartes, II, Past Chair,
Code and Rules of Evidence Committee, Law Offices of Tragos, Sartes & Tragos,
Clearwater, Florida; Perry Michael Adair, Vice-Chair, Code and Rules of Evidence
Committee, Becker & Poliakoff, P.A., Coral Gables, Florida; Patricia M. Dodson,
Vice-Chair, Code and Rules of Evidence Committee, Ponte Vedra, Florida; James
Norcross Floyd, Vice-Chair, Code and Rules of Evidence Committee, City
Attorney’s Office, Tallahassee, Florida; John Wayne Hogan, Code and Rules of
Evidence Committee, Terrell Hogan, Jacksonville, Florida; Andrew Hamilton,
Code and Rules of Evidence Committee, Andrew Hamilton, P.A., Tampa, Florida;
Judge Claudia Rickert Isom, Thirteenth Judicial Circuit, Code and Rules of
Evidence Committee, Tampa, Florida; and John F. Harkness, Jr., Executive
Director, and Krys Godwin, Bar Staff Liaison, The Florida Bar, Tallahassee,
Florida,
for Petitioner
Michael R. Alford, Senior Vice President/Deputy General Counsel, on behalf of
Raymond James Financial, Inc., Saint Petersburg, Florida; Moises Melendez of
Sedgwick LLP, Fort Lauderdale, Florida; Jane Anderson and Andrew Abramovich
of Boyd & Jenerette, P.A., Jacksonville, Florida; Mark R. Antonelli of Gaebe,
Mullen, Antonelli & Dimatteo, Coral Gables, Florida; Lewis F. Collins, Jr. of
Butler Weihmuller Katz Craig LLP, Tampa, Florida; Michael J. Corso of
Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, Florida; Michael Ross
D’Lugo and Richards Huff Ford of Wicker Smith O’Hara McCoy & Ford, P.A.,
Orlando, Florida; Peter Reed Corbin of Ford & Harrison LLP, Jacksonville,
Florida; Patrick Edward Quinlan of Searcy Denney Scarola Barnhart & Shipley,
P.A., West Palm Beach, Florida; Richard Paul Pravato of Law Office of Wolf &
Provato, Fort Lauderdale, Florida; Brett J. Yonon of Law Office of Wolf &
Pravato, Fort Lauderdale, Florida; Vincent Joseph Pravato of Law Office of Wolf
& Pravato, Fort Lauderdale, Florida; Brian Harris Malamud of Law Office of Wolf
& Pravato, Fort Lauderdale, Florida; Stephen Fink, Hollywood, Florida; Walter
Gary Meloon, Orlando, Florida; Jose M. Rubio, Jr., Mascotte, Florida; Sam
Arledge, Odessa, Florida; Richard May, Quincy, Florida; John Gory, Ocala,
Florida; John Yunker, Osprey, Florida; Alan Chandler, Newberry, Florida; Dannie
Griffin, Panama City, Florida; Dan Johnson, Sarasota, Florida; Richard Carroll,
Rockledge, Florida; Richard Feagle, Archer, Florida; Cherly Kluesener, Mount
Dora, Florida; Steve Hatfield, Sanibel, Florida; Tommy Pippin, Panama City,
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Florida; Bob Mercer, Orlando, Florida; William Cowherd, Edgewater, Florida;
Laura Mitchell, Cantonment, Florida; Tim Loughran, Oviedo, Florida; Jim
Rackley, Jr., Tallahassee, Florida; Lloyd Johnson Sarber, III of Marks Gray, P.A.,
Jacksonville, Florida; Tim Barter, Bradenton, Florida; Nate Oglesby, Winter
Garden, Florida; Jim Dietrich, Saint Cloud, Florida; Jo-Ann Taylor, Islamorada,
Florida; Tim Dozier, Zephyrhills, Florida; Sandrine Kouyessein, Port Saint Lucie,
Florida; Charles G. Fairbanks, Jr., Anthony, Florida; Grover McKee, Jr.,
Tallahassee, Florida; Pam Willis, Monticello, Florida; Carolina Diaz, Naples,
Florida; Bob Nelson, Saint Augustine, Florida; Kjhh Hodges, Pompano Beach,
Florida; Mike Jakubowski, North Port, Florida; Judy Powers, West Palm Beach,
Florida; Brenda C. Smith, Punta Gorda, Florida; Mike Jensen, Orlando, Florida;
Kevin Wheeler, Alva, Florida; Virginia Murphy, East Palatka, Florida; Frank
Sweeney, Bradenton, Florida; Brice R. Holladay, Jacksonville, Florida; Michelle
Smith, Winter Springs, Florida; Paul Scholer, Miami, Florida; Jack Chason,
Tallahassee, Florida; James Baker, Jacksonville, Florida; Jess Dade, Ruskin,
Florida; Mark De Jong, Bradenton, Florida; Gary Kallmeyer, Haines City, Florida;
Uma Lekhram, Plant City, Florida; Ralph T. Rogers, Milton, Florida; Stephen
Jones, Gainesville, Florida; Stephen Stump, Ocala, Florida; Brian Hershberger,
Ocala, Florida; Glenn Birket, Orlando, Florida; Jerry E. Pierce, Winter Park,
Florida; Steven A. Nisbet, Labelle, Florida; Jay Stees, Dunnellon, Florida; Gordon
Koegler of Law Offices of Gordon Koegler, P.A., Fort Lauderdale, Florida; Scott
Marlo Newmark of Carner, Newmark & Cohen, LLP, Fort Lauderdale, Florida;
David Haase, Lakeland, Florida; Rodger Mena, Lake City, Florida; David Batson,
Jr., Tallahassee, Florida; Alan Cody, Fort Myers, Florida; Margaret Bigham, Gulf
Breeze, Florida; Terri Alba, Plant City, Florida; Susan Soverns, Hollywood,
Florida; Tina M. Noll, Dade City, Florida; Kelley Olson, Tallahassee, Florida; Roy
Buncome, Fleming Island, Florida; Bob Dervaes, Yulee, Florida; Nancy J. Goulah,
Tampa, Florida; Francis Morton McDonald, Jr. of McDonald Toole Wiggins, P.A.,
Orlando, Florida; Howard Gardner Butler of Butler Law Group, Jacksonville,
Florida; David Robert Heil of David R. Heil, P.A., Winter Park, Florida; James
Graber, Longwood, Florida; Jeff Godwin, Indialantic, Florida; John Doble, Odessa,
Florida; James Richard Caldwell, Jr. of Rumberger Kirk & Caldwell, P.A., Tampa,
Florida; Charles Henry Baumberger of Rossman, Baumberger, Reboso & Spier,
P.A., Miami, Florida; Spencer Hal Silverglate of Clarke Silverglate, P.A., Miami,
Florida; Tara C.F. Ryan, PhRMA, Washington, District of Columbia; J. David
Williams, Progressive Insurance, Mayfield Village, Ohio; James M. Graber,
Apopka, Florida; Jonathan Moore, Winter Park, Florida; Robert N. LaFontaine,
Fort Myers, Florida; Lynn Hileman, Jacksonville Beach, Florida; Mikaela Olsen,
Winter Garden, Florida; Debra Kneiss, Dania Beach, Florida; Terry Cole of
Gunster, Yoakley & Stewart, P.A., Tallahassee, Florida; Wendy Frank Lumish of
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Bowman and Brooke LLP, on behalf of Florida Attorneys of Bowman and Brooke
LLP, Coral Gables, Florida; Mark Hicks and Mary Joanna Gniadek of Hicks,
Porter, Ebenfeld & Stein, P.A., Miami, Florida, on behalf of The Doctors
Company; Douglas Malcolm McIntosh and Kimberly Kanoff Berman of McIntosh,
Sawran & Cartaya, P.A., Fort Lauderdale, Florida; Dana Brooks Cooper of Barrett,
Fasig & Brooks, Tallahassee, Florida; Sean Christopher Domnick of Domnick
Cunningham & Whalen, Palm Beach Gardens, Florida; Michael John Thomas of
Pennington P.A., Tallahassee, Florida; Brian Orr Sutter of All Injuries Law Firm,
PA, Port Charlotte, Florida; Thomas Stoneham Edwards, Jr. of Edwards & Ragatz,
P.A., Jacksonville, Florida, and Courtney Kneece Grimm of Bedell, Dittmar,
Devault, Pillans & Coxe, P.A., Jacksonville, Florida, and Thomas Edward Bishop
of Tanner Bishop, Jacksonville, Florida, on behalf of The Trial Lawyers Section of
The Florida Bar; Gary M. Farmer, Sr. of Farmer Jaffe Weissing Edwards Fistos &
Lehrman P.L., Fort Lauderdale, Florida; Howard Coleman Coker of Coker,
Schickel, Sorenson, Posgay, Camerlengo & Iracki, P.A., Jacksonville, Florida;
Joseph B. Jones of Shapiro Law Group, Bradenton, Florida; Jonathan Adam Huth
of Murphy Anderson, Jacksonville, Florida; Lawton R. Graves of Murphy
Anderson, Jacksonville, Florida; Nicole Tucker Melvani of Murphy Anderson,
Jacksonville, Florida; Davis Daniel Balz of Murphy Anderson, Jacksonville,
Florida; Gerald Anthony Giurato of Murphy Anderson, Jacksonville, Florida; Niels
Murphy of Murphy Anderson, Jacksonville, Florida; William Newton Shepherd of
Holland & Knight LLP, West Palm Beach, Florida; Gregory Robert Miller of
Beggs & Lane RLLP, Tallahassee, Florida, Pamela Cothran Marsh of Berger
Singerman, LLP, Tallahassee, Florida, A. Brian Albritton of Phelps Dunbar,
Tampa, Florida, Marcos Daniel Jimenez D’Clouet of McDermitt Will & Emery,
LLP, Miami, Florida, Neal Russell Sonnett of Neal R. Sonnett, P.A., Miami,
Florida, James E. Felman of Kynes Markman & Felman, Tampa, Florida, Michael
S. Pasano of Carlton Fields Jorden Burt, Miami, Florida, and Bruce Martin Lyons
of Law Offices of Bruce M. Lyons, Fort Lauderdale, Florida; Nathaniel Edward
Green of Nathaniel E. Green, P.A., Fort Lauderdale, Florida; John Allen Attaway,
Jr., Publix Super Markets, Inc., Lakeland, Florida; T. Rankin Terry, Jr., Fort
Myers, Florida; Henry Salas and David Orestes Caballero of Cole Scott & Kissane,
P.A., Miami, Florida, on behalf of Cole, Scott & Kissane, P.A.; Kurt Eugene Lee
of Kurt E. Lee, PL, Sarasota, Florida; Cecil Pearce, Tallahassee, Florida, on behalf
of Florida Insurance Council; Daniel A. Murphy of Shapiro, Goldman, Babboni &
Walsh, Bradenton, Florida, on behalf of Shapiro, Goldman, Babboni & Walsh;
George N. Meros, Jr. and Andy Velosy Bardos of GrayRobinson, P.A.,
Tallahassee, Florida, and William W. Large of Florida Justice Reform Institute,
Tallahassee, Florida, on behalf of Florida Justice Reform Institute; Erin O’Dell
O’Brien, Jacksonville, Florida, on behalf of CSX Transportation, Inc.; Craig S.
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Hudson of Marshall Dennehey Warner Coleman & Goggin, Fort Lauderdale,
Florida; Anthony Hunter Quackenbush of Kelley Uustal Trial Attorneys, Fort
Lauderdale, Florida; James William Guarnieri, Jr. of Guarnieri Law Firm, PA,
Brandon, Florida; Troy Alan Rafferty of Levin Papantonio Thomas Mitchell
Rafferty & Proctor, P.A., Pensacola, Florida, on behalf of Florida Justice
Association; Patrick Stephen McArdle of Grossman Roth & Partridge on behalf of
Grossman Roth Yaffa & Cohen, P.A., Sarasota, Florida; Hayden Patrick O’Byrne
of K&L Gates, LLP, Miami, Florida; Susan K. Spurgeon of Pennington, P.A.,
Tampa, Florida; Charles M. Trippe, Jr., Jacksonville, Florida, on behalf of Carol
Ann Licko, Raquel A. Rodriguez, Paul C. Huck, Jr., Jason B. Gonzalez, Erik M.
Figlio, and Jesse M. Panuccio; E. G. (Gerry) Morris, Austin, Texas, Bruce Lyons,
Fort Lauderdale, Florida, Neal R. Sonnett, Miami, Florida, and Jeffrey S. Weiner,
Miami, Florida, on behalf of the National Association of Criminal Defense
Lawyers; Julianne M. Holt, Tampa, Florida, on behalf of the Florida Public
Defender’s Association, Inc.; Rodolfo Sorondo, Jr. of Holland & Knight LLP,
West Palm Beach, Florida, Roy Carroll Young of Young, Vanassenderp & Qualls,
P.A., Tallahassee, Florida, and Bill Herrle, Tallahassee, Florida, on behalf of The
National Federation of Independent Business/Florida and The Florida Chamber of
Commerce; John Fletcher Romano of Romano Law Group, West Palm Beach,
Florida, on behalf of Romano Law Group; Patrick Alexander Gillen of Newsome
Melton, Orlando, Florida; William Carl Ourand, Jr. of Newsome Melton, Orlando,
Florida; Laurie J. Briggs, West Palm Beach, Florida; Diana Santa Maria of Law
Offices of Diana Santa Maria, P.A., Fort Lauderdale, Florida; Todd Jordan
Michaels of the Haggard Law Firm, Coral Gables, Florida, on behalf of Todd
Jordan Michaels and The Haggard Law Firm; Seth Elliot Miller, Tallahassee,
Florida, on behalf of Innocence Project of Florida, Inc.; Leslie Mitchell Kroeger of
Cohen Milstein Sellers & Toll PLLC, Palm Beach Gardens, Florida; Robert F.
Spohrer of Spohrer & Dodd, Jacksonville, Florida; Robert Mark Brochin of
Morgan, Lewis & Bockius LLP, Miami, Florida; David J. Halberg of David J.
Halberg, P.A., West Palm Beach, Florida; Belvin Perry, Jr. of Morgan & Morgan,
Orlando, Florida; Corinne Cotton Hodak of Corinne C. Hodak, P.A., Jacksonville,
Florida; Robert Frank Melton, II of Newsome Melton, Orlando, Florida; Robert
Eric Bilik of McGuireWoods LLP, Jacksonville, Florida, on behalf of
McGuireWoods LLP; Michael Jason Winer of the Law Office of Michael J. Winer,
Tampa, Florida, on behalf of the Workers’ Compensation Section of The Florida
Bar; Timothy Michael Moore of Shook Hardy & Bacon, Miami, Florida; Mark
Kenneth Delegal of Holland & Knight LLP, Tallahassee, Florida, on behalf of
Chubb, Cook Group Incorporated, The Dow Chemical Company, Eli Lilly and
Company, Glaxosmithkline LLC, Metlife, Inc., Novo Nordisk Inc., Smiths Group,
State Farm Mutual Automobile Insurance Company, Walgreens, Zimmer Biomet,
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and American Tort Reform Association; Tiffany Roddenberry of Holland &
Knight, Tallahassee, Florida, on behalf of American Coatings Association, Inc.,
Astrazeneca Pharmaceuticals LP, Boston Scientific Corporation, Brunswick
Corporation (Boston Whaler, Sea Ray, Brunswick Commercial & Government
Products, and Mercury Marine), Caterpillar, Inc., CSX Transportation, Inc., Deere
& Company, Eli Lilly and Company, Ford Motor Company, Georgia-Pacific LLC,
Hyundai Motor America, Johnson & Johnson, Merck & Company, Inc., Norfolk
Southern Corporation, Novartis Pharmaceuticals Corporation, and Pfizer, Inc.;
Matthew Kerry Schwencke, West Palm Beach, Florida, on behalf of Searcy
Denney Scarola Barnhart & Shipley, PA; Gregory William Coleman of Critton
Luttier and Coleman, West Palm Beach, Florida, on behalf of Past Presidents of
The Florida Bar and other members of The Florida Bar; Dan Cytryn of Law
Offices of Cytryn & Velazquez, P.A., Coral Springs, Florida; Eric Harald Faddis
and Tiffany Marie Faddis of Faddis & Faddis, P.A., Orlando, Florida; Walter
Gordon Campbell, Jr. of Krupnick Campbell Malone Buser Slama Hancock
Liberman, P.A., Fort Lauderdale, Florida; Brian Christopher Costa of Alvarez,
Carbonell, Feltman & Da Silva P.L., Coral Gables, Florida; Stephen George
Charpentier of Charpentier Law Firm, P.A., Melbourne, Florida; Edward Vincent
Ricci of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach,
Florida; James Read Holland, II of Harrell & Harrell, P.A., Jacksonville, Florida;
Pete Hutchison Brock, II of Brock Law, LLC, Wesley Chapel, Florida; Daniel H.
Perez of Alvarez, Carbonell, Feltman & Da Silva P.L., Coral Gables, Florida;
Robert D. Melton of Robert D. Melton P.A., Orlando, Florida; Jack Roy Reiter of
GrayRobinson, P.A., Miami, Florida; Stephen Ashley Barnes of Barnes Trial
Group, Tampa, Florida, on behalf of Stephen Ashley Barnes and Barnes Trial
Group; Howard Kraft Pita of Pita Weber Del Prado, Miami, Florida; William
Patrick Geraghty and Daniel Francis Molony of Shook Hardy & Bacon L.L.P.,
Miami, Florida, on behalf of the Florida Attorneys of Shook, Hardy & Bacon
L.L.P.; Gregory Andrew Reed of Simon, Reed & Salazar, P.A., Miami, Florida, on
behalf of Simon Reed & Salazar, P.A.; Charles Emmanuel Fombrun of Alvarez,
Carbonell, Feltman & Da Silva P.L., Coral Gables, Florida; Morgan Wood
Streetman of Streetman Law, Tampa, Florida; Ryan Sean LeMontang of Alvarez,
Carbonell, Feltman & Da Silva P.L., Coral Gables, Florida; Stephen Eugene Mahle
of Stephen Mahle, P.A., Boca Raton, Florida; Elizabeth Walker Finizio of Finizio
& Finizio, PA, Fort Lauderdale, Florida; Stephen Watrel of Steve Watrel, P.A.,
Jacksonville, Florida; Julie Braman Kane of Colson Hicks Eidson, Coral Gables,
Florida; Christina Marrero of Alvarez, Carbonell, Feltman & Da Silva P.L., Coral
Gables, Florida; The Honorable Garrett Richter, President Pro Tempore, The
Florida Senate, Tallahassee, Florida; Robert L. Simmons, Saint Petersburg,
Florida, on behalf of Allstate Insurance Company; Kenneth Andrew Stoller,
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Washington, District of Columbia, on behalf of American Insurance Association;
The Honorable Larry Metz, The Florida House of Representatives, Tallahassee,
Florida; David E. Bright, Washington, District of Columiba, on behalf of Alliance
of Automobile Manufacturers and Charles H. Haake, Washington, District of
Columbia, on behalf of Association of Global Automakers; Bryan Scott Gowdy of
Creed & Gowdy, P.A., Jacksonville, Florida; Carlos Jesus Martinez, Public
Defender, and John Eddy Morrison, Assistant Public Defender, Eleventh Judicial
Circuit, Miami, Florida, on behalf of The Florida Public Defender Association,
Inc.,
Responding with Comments
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