The Florida Supreme Court has acted quickly in response to the Florida Legislature’s June 2011 amendments to Florida’s Probate Code, which include some major departures from existing law.  Because the Code amendments also became effective as soon as the Governor signed them — even applying retroactively to pending cases — the Court immediately adopted a

It’s been almost 5 years since the Florida Supreme Court issued its grand compromise decision in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006).  As contemplated by that decision, many individual suits have been filed by Engle class members.  Some have been tried to a verdict or have been dismissed, and are now on appeal.  Can it be long before the Florida Supreme Court is compelled to step in to definitively resolve the next round of Engle issues?  

The District Courts of Appeal have recently been grappling with the thorny issues resulting from the Court’s decision to decertify the class, but allow class members to take advantage of 8 findings made by the Engle jury by way of res judicata

The 1st DCA gave an early interpretation of how to apply Engle in R.J. Reynolds Tobacco Co. v. Martin, decided in December 2010, in upholding a $28.3 million judgment in favor of a deceased smoker’s widow.  The Florida Supreme Court denied review in Martin in July. (RJR v Martin_07-19-2011_Order_Denying Review.pdf). 

Although the 11th Circuit had earlier offered its own thoughts on Engle, Martin stood as the only state appellate court decision on this score.  That changed on September 21, 2011, when the 4th DCA weighed in on Engle in R.J. Reynolds Tobacco Co. v. Brown, expressing some (but in my view, not much) disagreement with the 1st DCA’s application of it.  The tobacco industry defendants, which can’t be too happy with Engle or its aftermath, are no doubt chomping at the bit to use any disagreement among the DCAs to convince the Supreme Court to take up the case. 

Although it’s dangerous to try to read tea leaves, the differences between Martin and Brown, understood in context, don’t seem to me to be the type of conflict that would ordinarily win review, particularly while the issues are still percolating in the other Districts.  On the other hand, the defendants may take a bit more hope from Chief Judge May’s stinging concurrence in Brown, which questioned whether Engle can be applied as written without violating due process, an implication that could give the justices more of an impetus to address these issues sooner rather than later. 

And the Supreme Court will undoubtedly be asked to take up some of the other issues percolating in the Engle progeny cases, such as the Constitutionality of the statute passed after the State’s settlement with the Tobacco industry, which reduces the bonds that industry defendants must post for appeals.  In addition, although the 3rd DCA has yet to take up the core issue addressed in Martin and Brown, last week in Rey v. Phillip Morris, Inc., it interpreted Engle (and applied traditional conspiracy principles) to hold that any class member can sue Lorillard, Liggett, and Vector Group for their role in the conspiracy to conceal information, even though the class member didn’t smoke those companies’ cigarettes, and can take advantage of the Engle findings.  The Supreme Court will no doubt be asked to review that decision as well.      

So I have no doubt that the court will wade back into this controversy sooner or later.  The question is which one.

More details below.


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The Florida Supreme Court returned from its summer hiatus last week with its first regular release of opinions since July 8, and sent this message: when the grandkids come to visit, don’t let them drive your car! 

Among the new opinions released on Thursday, August 25, 2011 was State Farm Mutual Automobile Insurance Co. v.

Arbitration is thought to be a way to resolve disputes more quickly and without the burdens of litigation and appeals in court proceedings. More than 10 years ago, assisted living facilities and nursing homes in Florida began including arbitration agreements among the admissions documents new residents are required to sign. But judging from the seemingly

Losing at trial hurts. Getting hit with the bill for your adversary’s attorney’s fees makes it hurt ever-so-much more. That’s why fee-shifting under Florida Statutes Section 768.79 — available to parties that make a proposal for settlement under Rule 1.442 — can be such a powerful tool. It’s probably also why lawyers who refuse an

Long before foreclosure lawsuits flooded Florida court dockets, chief judges here and throughout the country were fretting over how to deal with the even more daunting “asbestos-litigation crisis” [Amchem Products, Inc. v. Windsor, 521 U.S. 591, 597 (1997)]  That ongoing and seemingly endless litigation has been flooding the courts since the 1960s and in the words of Justice Souter, “defies customary judicial administration.” Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).

Other mass torts (a/k/a toxic torts) have come and gone, but asbestos litigation – the first of the species – lives on. As long as it does, so will legislative and judicial efforts to control, limit, or end asbestos litigation.

Joining several other states, the Florida Legislature passed legislation aimed at curbing asbestos litigation in 2005. Asbestos plaintiff lawyers, who had lobbied hard against the legislation’s passage, challenged it in court almost immediately.

On Friday, July 8, 2011, the Florida Supreme issued its long awaited decision in several of those challenges, American Optical Corporation v. Spiewak, Nos. 08-1616, 08-1640, 08-1617, & 08-1639.  The Court declared the law to be unconstitutional as applied to anyone whose claims had “accrued,” but had not gone to trial, prior to July 1, 2005.

The decision allows a group of plaintiffs to sue who could not have sued under the legislation.  The question is how large that group might be.  According to Adolfo Pesquera’s article in the DBR, some are suggesting that this decision will “open the floodgates.” But I have serious doubts about that.

As I read the decision, it won’t affect anyone who wasn’t diagnosed before the asbestos reform law went into effect on July 1, 2005. According to the Court, if you were diagnosed before that date, it was unconstitutional for the legislation to deprive you of your right to sue, because your claim had already accrued. 

But when your claim accrued, the statute of limitations started running on your claims. The statute of limitations is 4 years. It’s been almost 6 years since July 1, 2005. So if you didn’t haven’t filed suit already, it would seem to be too late now to do so.

So I’m not sure that any new suits can be filed.  And if other plaintiffs did file suit, their cases would presumably have been dismissed long ago under the auspices of the reform law.  Unless they were stayed pending the Court’s decision in American Optical, it would too late to revive most of them now.

A more detailed analysis of the backdrop of the case and the court’s analysis follows.


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Real electronic filing may finally make its way to Florida courts in the not-too-distant future.  But before that happens, the Florida Supreme Court wants to make sure that there isn’t too much private information in court filings for the public to access.

On June 30, 2011, the Court adopted sweeping new rules about what information can and can’t be put in the court file.  Florida litigators who want to avoid the sanctions that can be imposed for violating the new rules shouldn’t wait too long to become familiar with them — they are going into effect on October 1, 2011.

For the time being, the privacy rules don’t affect criminal cases, for the most part, but they affect all civil cases.  And the reprieve in criminal cases isn’t likely to last very long.

Here is a breakdown of the Rule changes you need to know:

Florida Rule of Judicial Administration 2.425

Rule of Judicial Administration 2.425, which was added by the Court’s June 30, 2011 Amendments, contains the overarching principles. So if you learn that Rule (and remember to apply it in whatever context you find yourself) you’ll be most of the way there. But one caution: Rule 2.425 only states a default rule — it gives way to conflicting Rules, statutes, and orders.

This chart spells out the types of information that are subject to Rule 2.425:

Restricted Info:     Can include in a filing?           Exceptions:

Child’s Name           Initials only                        Orders re: time-sharing, parental
                                                                   responsibility, or child support. 
                                                                   Any document re: child’s ownership of real property.
Birthdates               Year only                           Any party’s full birthdate in writ of attachment
                                                                   or notice to payor. Child’s full birthdate when
                                                                   necessary for jurisdiction.
Social Sec. #s              No                               General exceptions
Bank Account #s           No                               General exceptions
Credit/Debit Card #       No                               General exceptions
Charge Account #          No                               General exceptions
Drivers License #          Last 4 digits only            General exceptions
Passport #                   Last 4 digits only            General exceptions
Taxpayer ID #              Last 4 digits only            General exceptions
Employee ID #             Last 4 digits only            General exceptions
Phone #                      Last 4 digits only            General exceptions
Insurance Policy #         Last 4 digits only            General exceptions
Loan #                        Last 4 digits only            General exceptions
Patient/health care #      Last 4 digits only            General exceptions
Customer Accont #        Last 4 digits only            General exceptions
Email address               Truncated                      General exceptions
User name                   Truncated                      General exceptions
Password                     Truncated                      General exceptions
PIN #s                        Truncated                      General exceptions
Other sensitive info:      Truncated as per court order

General Exceptions:

  • Statute, Rule or Order authorizes the inclusion of the information in a filing
  • Account number is necessary to identify property at issue in a case.
  • Information that is “relevant and material to an issue before the court.” [!!! This looks to me like an exception that you could drive a truck through.  It’ll be interesting to see how courts interpret it.]
  • Records in an administrative, agency, appellate, or review proceeding.
  • Information used by the clerk or the court for file and case management purposes.
  • Criminal cases are temporarily exempt.
  • Traffic court cases are temporarily exempt.
  • Small claims cases are temporarily exempt.

A Few Other Notes:

What effect does Rule 2.425 have on parties’ ability to obtain a protective order?  According to the Rule itself, none.  But I’d be surprised if judges’ opinions on what information should be kept private were not influenced by the views of the Supreme Court as expressed in Rule 2.425.

The Rule also claims that it “does not affect the application of constitutional provisions, statutes, or rules of court regarding confidential information or access to public information.”  I’m not sure how that could be so, but again, we’ll see how courts interpret that subsection.

The Court is also amending quite a few other Rules to accomodate Rule 2.425.  Changes are being made to the Rules of Civil Procedure, particularly with regard to filing discovery documents, the Family Law Rules of Procedure, the Rules of Appellate Procedure, Probate Rules, and to a lesser extent, Criminal Procedure and Small Claims Rules, as well as several forms.

The amendments to those rules and forms are listed below. 


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Florida’s Third District Court of Appeals had harsh words for a foreclosing bank’s counsel in Jade Winds Association v. Citibank, N.A., No. 3D11-275, released on Wednesday, May 4, 2011.

The 3rd DCA not only reversed an order that had cancelled a foreclosure sale at the bank’s request, but called out the bank’s counsel for