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Florida is one of the few states that recognizes an independent cause of action for spoliation of evidence against nonparties to a lawsuit. Although the nonparty is not a party to the underlying action causing the plaintiff’s injuries, the nonparty damaged, lost, misplaced or destroyed evidence critical to the plaintiff’s underlying case. To prove spoliation, a plaintiff must prove six elements: (1) existence of a potential civil action, (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action, (3) destruction of that evidence, (4) significant impairment in the ability to prove the lawsuit, (5) a causal relationship between the evidence destroyed and the inability to prove the lawsuit, and (6) damages. Gayer v. Fine Line Constr. & Elec., Inc., 970 So. 2d 424 (Fla. 4th DCA 2007).

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COMPARATORS IN EMPLOYMENT DISCRIMINATION CASES

Lewis v. City of Union City, GA, 918 F.3d 1213 (11th Cir. 2019)

In discrimination cases, where the adverse employment action was founded on the type of misconduct and the employee’s disciplinary history, a critical issue is the matter of comparators. In this case, the Eleventh Circuit, in a 9 to 3 en banc decision, clarified the considerations trial courts should use in determining whether employees are comparators. The Eleventh Circuit noted that it had used different standards in determining whether employees were comparators, in some cases using the “nearly-identical standard,” and in others the “same-or-similar standard.”

The Eleventh Circuit reaffirmed that for an employee outside of

the Plaintiff’s protected class to be a comparator he or she must be “similarly situated in all material respects.” The Court explained that ordinarily this means the proposed comparator will have engaged in the same basic conduct (or misconduct) as the Plaintiff; will have been subject to the same employment policy, guideline, or rules as the Plaintiff; will ordinarily (although not invariably) Cont’d 3b

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2 The duty to preserve evidence arises based on the existence of a contract, statute, or

properly served discovery request. Id. at 426. The Fifth District Court of Appel (“Fifth DCA”) recently emphasized the importance of a properly served discovery request in order to have a cognizable claim for spoliation of evidence against a nonparty.

In Shamrock-Shamrock, Inc. v. Remark, No. 5D18-1987, 2019 WL 1868175 (Fla. 5th DCA

Apr. 26, 2019), Shamrock asserted that Remark’s knowledge of Shamrock’s lawsuit against the City of Daytona Beach imposed a duty on Remark to preserve a computer and its contents as evidence, in particular, letters or files saved to the computer that were relevant to Shamrock’s litigation against the City. Remark was not a party to the suit, but was served with multiple deposition notices in the case; however, none requested she produce or preserve records or items. During that timeframe, Remark obtained a new computer and destroyed her old computer, without preserving the computer’s contents or informing the parties to the case. After destroying her computer, Remark was served with a deposition notice and for the first time, a subpoena duces tecum with a request to produce tangible items. Shamrock argued that Remark had a duty to preserve her computer because she had notice of the litigation by virtue of the deposition notices.

The Fifth DCA disagreed with Shamrock, finding there was no statute, contract, or

discovery request to impose a duty on Remark to preserve potentially relevant evidence. The foreseeability of litigation or even actual knowledge of litigation is not sufficient to trigger the duty of a nonparty to preserve evidence. In reasoning against a general duty on nonparties, the court recognized respect for individual property rights, the concern for imposing an undue financial burden on nonparties, and the potential for endless litigation over speculative losses promoted by onerous evidence retention policies. A nonparty may have evidence relevant to a case, and may very well be aware of its relevance, but that knowledge alone should not require the nonparty to anticipate the needs of another’s lawsuit.

As the court explained, a subpoena duces tecum provides an enforceable legal mechanism

if a nonparty possesses evidence to pending litigation. To avoid the loss of relevant or potentially helpful evidence, every effort should be made to request and obtain the evidence from the nonparty, as soon as a party to a lawsuit learns of its existence. Without the proper request, the nonparty has no obligation to preserve the evidence and the party to the underlying suit is left without an enforceable remedy.

By Jennifer C. Barron

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have been under the jurisdiction of the same supervisor as the Plaintiff; and will have a similar employment or disciplinary history as the Plaintiff. The Court rejected labels, explaining that a valid comparison will not turn on employee titles but on substantive similarities. It went on to state that “comparators must be sufficiently similar in an objective sense, that they cannot be reasonably distinguished.”

Though this en banc decision confirmed what were many practitioners view of law, of potentially more significance is the Court’s holding that the comparator analysis is part of the Plaintiff’s prima facie case. In other words, unless the Plaintiff can show that he or she was treated differently than a comparator outside of his or her protected class, the Defendant employer will not have to produce evidence of a non-discriminatory and/or non-pretextual reason for the adverse employment action. This holding, according to the dissent, amounted to “dropping an anvil on the employer’s side of the balance….” By: Michael H. Bowling

In recognition of the fact that plaintiffs and defendants, in personal injury litigation, are not being treated equally as a result of the application of the Florida Supreme Court’s decision in Worley v. Central Florida YMCA, 228 So. 3d 18 (Fla. 2017), the Fifth District Court of Appeal (“5th DCA”) has now certified three separate cases, involving the identical legal issue, to the Florida Supreme Court, as presenting questions of great public importance. Initially, in Younkin v. Blackwelder, 44 Fla. L. Weekly D549 (Fla. 5th DCA Feb. 22, 2019) the court noted that because of the manner in which the Worley decision was being interpreted and applied by trial courts, plaintiffs were receiving preferential treatment, with respect to expert bias discovery, as compared with similarly situated defendants. Thereafter, the 5th DCA certified the same legal issue in Dhanraj v. Garcia, 44 Fla. L. Weekly D785 (Fla. 5th DCA March 22, 2019) and Salber v. Frye, 2019 WL 2062373 (Fla. 5th DCA May 10, 2019).

In Worley, the Florida Supreme Court addressed the issue of whether the attorney-client

privilege protects a plaintiff from disclosing that an attorney referred him or her to a doctor for treatment, or a law firm from producing documents related to a possible referral relationship between the firm and its client's treating physicians. The court concluded that such information was protected by the attorney-client privilege. The court in Worley distinguished its earlier decision in Allstate Ins. Co. v. Boecher, 733 So. 2d 993, 997 (Fla. 1999) where it determined that the extent of a party's financial relationship with a particular expert was discoverable, from the issue before it regarding the ability to discover a referral or other financial relationship between a plaintiff's law firm and the plaintiff's treating physician because, “[f]irst, and most obviously, the law firm is not a party to the litigation”. Worley 228 So.3d at 23. However, many courts had previously interpreted Boecher to authorize a plaintiff Cont’d 4

EXPERT DISCOVERY-FINANCIAL RELATIONSHIPS BETWEEN

EXPERT AND LAW FIRMS

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to serve discovery directed to defendants regarding the frequency with which an expert has been retained by defense counsel and the amount of fees paid to said expert, in order to “…assist counsel in impeaching examining physicians and other experts by demonstrating that the expert has economic ties to the insurance company or defense law firm. See e.g., Vazquez v. Martinez, 175 So. 3d 372, 373−74 (Fla. 5th DCA 2015). Obviously, the defense firm is no more a “party to the litigation” than is the plaintiff’s law firm and therefore the Supreme Court’s distinction, on that basis, seems contradictory on its face.

Recognizing this inherent unfairness, the 5th DCA, in Younkin, noted as follows:

Our court has also noted the seemingly disparate treatment in personal injury litigation between plaintiffs and defendants regarding disclosure of this type of relationship. See State Farm Mut. Auto. Ins. Co. v. Knapp, 234 So.3d 843, 845 n.1 (Fla. 5th DCA 2018) (observing that “Worley seems, as a practical matter, to permit full Boecher discovery only when it is directed to personal injury defendants and their insurers, while shielding injured plaintiffs from having to disclose information about similar repetitious referral relationships that exist between doctors and plaintiffs' counsel by invoking the attorney-client privilege”). For example, under Worley, a plaintiff law firm can refer 100 of its clients to the same treating physician, who may later testify as an expert witness at trial, without that referral arrangement being either discoverable or disclosed to the jury, yet if a defense firm sends each one of these 100 plaintiffs to its own expert to perform a CME under Florida Rule of Civil Procedure 1.360, and then later to testify at trial, the extent of the defense law firm's financial relationship with the CME doctor is readily discoverable and can be used by the plaintiff law firm at trial to attack the doctor's credibility based on bias. See § 90.608(2), Fla. Stat. (2016). Nevertheless, this appears to be the present status of the law.

Younkin, supra.

Because the law was not being applied in an even handed manner to all litigants, the 5th DCA announced that it was certifying the following question, of great public importance, to the Florida Supreme Court for its determination:

WHETHER THE ANALYSIS AND DECISION IN WORLEY SHOULD ALSO APPLY TO PRECLUDE A DEFENSE LAW FIRM THAT IS NOT A PARTY TO THE LITIGATION FROM HAVING TO DISCLOSE ITS FINANCIAL RELATIONSHIP WITH EXPERTS THAT IT RETAINS FOR PURPOSES OF LITIGATION INCLUDING THOSE THAT PERFORM COMPULSORY MEDICAL EXAMINATIONS UNDER FLORIDA RULE OF CIVIL PROCEDURE 1.360?

To date, the Florida Supreme Court has not announced whether it will accept jurisdiction of

this certified question. However, given this inherent contradiction and the resulting unfairness, one can only hope that the Court will heed the classic adage of “what is good for the goose is good for the gander” and even the playing field for all litigants.

By: Michael J. Roper

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NON-FINAL DISMISSAL OF ADA WEBSITE ACCESSIBILITY LAWSUIT

On May 20, 2019, United States District Judge William F. Jung dismissed without prejudice Plaintiff Joel Price’s initial complaint filed in an ADA website accessibility lawsuit against the Town of Longboat Key, Florida. Judge Jung generally adopted the Article III standing analysis of United States District Judge James S. Moody, Jr. from the Price v. City of Ocala lawsuit. Judge Jung noted that Mr. Price is not and has no apparent plans to be a resident of the Town, nor does he have any stated plan to visit the Town. Price also failed to allege that the information he claimed to have sought through the Town’s website was personally important to him. Also notable was that the Town promptly responded to Mr. Price’s “Request for Accommodation” letter by providing all of the documents Mr. Price requested in remediated, accessible format on a thumb drive. Judge Jung held that because the Town provided all of the information Mr. Price sought in accessible format, Mr. Price had not alleged an injury-in-fact as required to establish Article III standing. Judge Jung continued by noting that Mr. Price also failed to state a claim upon which relief can be granted in light of the fact that there was no apparent need for prospective relief and because the complaint reflected a lack of discriminatory intent and deliberate indifference. This highlights the importance of promptly responding to a request for accommodation and providing the information sought in accessible format. Although Judge Jung was willing to dismiss the case for lack of standing and failure to state a claim upon which relief can be granted, Judge Jung appeared to take a dim view of the primary jurisdiction and due process arguments that the Town presented in its motion to dismiss. Judge Jung provided Mr. Price through June 3, 2019 to file an amended complaint.

By: Frank M. Mari

SECOND DISTRICT COURT OF APPEAL BROADLY CONSTRUES STANDING PROVISION WHICH ALLOWS CHALLENGES TO

MUNICIPAL ANNEXATIONS

The Second District Court of Appeal recently considered, and has broadly construed, the breath of the standing provision under Chapter 171, Fla. Stat., which must be satisfied in order to challenge a municipal annexation ordinance. Matlacha Civic Assoc., Inc. v. City of Cape Coral, No. 2D18-419, 2019 WL 2203179 (Fla. 2d DCA, May 22, 2019). In 2012, the Cape Coral purchased six parcels of land located on the eastern edge of the island community of Matlacha in unincorporated Lee County. In 2016, the City Council proposed an ordinance to annex the property into the city limits. Cape Coral used the “voluntary annexation” procedure under Section 171.044, Fla. Stat., because it owned the parcels. When the City Council conducted a hearing on the proposed annexation, it was met with significant opposition. Hundreds of objecting citizens appeared at the hearing. Among the many objections raised was an assertion that under the statute, it is improper for a municipality to purchase land outside its jurisdiction and then use the “voluntary annexation” procedure. Despite the objections, the City passed the ordinance.

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A group of the objecting citizens sought circuit court review of the ordinance under section

171.081(1), and asserted various arguments as to why the court should nullify the ordinance. In response, the City argued the citizen petitioners lacked standing to challenge the ordinance. The Court agreed with the City, and dismissed the petition for lack of standing. The citizens sought further appeal before the Second District Court of Appeal. At issue on appeal was Section 171.081(1), which provides in part:

Any party affected who believes that he or she will suffer material injury by reason of the failure of the municipal governing body to comply with the procedures set forth in this chapter for annexation… or to meet the requirements established for annexation… as they apply to his or her property may file a petition in the circuit court… seeking review by certiorari. (Emphasis added).

Section 171.031(5) defines “parties affected” as “any persons or firms owning property in,

or residing in, either a municipality proposing annexation or contraction or owning property that is proposed for annexation to a municipality or any governmental unit with jurisdiction over such area.” The circuit court found, and the City conceded, the citizen petitioners were “parties affected.” But, the City argued they had not suffered “material injury.” The circuit court agreed and concluded they had not suffered a present material injury directly resulting from the annexation, and thus lacked standing. In so doing, the circuit court committed error.

Focusing on the plain language of Section 171.081(1), the Court of Appeal found the

petitioners need not have alleged present injury. Rather, the key is whether the petitioner believes he or she will suffer material injury. The Court of Appeal concluded the petitioners’ asserted belief that they would suffer material injury from the unlawful annexation was sufficient to afford them the right to pursue statutory review of the annexation.

Accordingly, the Second District Court of Appeal appears to have broadly construed the

annexation statute’s standing provision to allow challenges where a petitioner asserts a

subjective belief that he or she will suffer material injury in the future—that is, the assertion of

a claimed “present” injury is not required.

By: Dale A. Scott

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2019 LEGISLATIVE SESSION UPDATE

Now that the dust has finally cleared, this year’s legislative session produced slightly fewer bills than the 2018 session. Excluding one-chamber resolutions, only about ten percent (10%), of the total number of bills filed actually passed. What follows is a list of some of the most notable bills which received a “P” during the 2019 legislative session. AGRICULTURE Hemp: Authorizes the Department of Agriculture and Consumer Services to administer a state hemp program and sets up rulemaking and a board of experts to develop the system. (SB 1020) CORRECTIONS Drones, Guard Ages: Prohibits flying drones near detention centers and at the same time lowered the minimum age permissible for a jail guard from 19 to 18. (HB 7057) Inmates: Requires correctional facilities to provide incarcerated women with certain health care products, subject to certain requirements; provides requirements for male correctional facility employees in certain circumstances; requires documentation of certain incidents involving male correctional facility employees. (HB 49) EDUCATION Anti-Semitism: Requires schools and colleges to address allegations of anti-Semitism in the same way they address racism. (HB 741) Guardians: Expands the school guardian program to allow trained teachers in certain school districts to volunteer to carry weapons. (SB 7030) ELECTIONS AND CAMPAIGNS Amendment 4: Requires felons to pay restitution, fine, and fees before they can register to vote after the passage of last year’s Amendment 4 ballot measure. (HB 7089/SB 7086/SB 7066, amended) Petition Drives: Requires citizen-led attempts to change the constitution to use only Florida residents on petition drives and to register with the Florida Secretary of State, which would prevent the involvement of out-of-state firms in petition drives. (SB 7096 / HB 7111) ENVIRONMENT Plastic Straws: Prohibits local government entities from adopting or enforcing ordinances and regulations relating to single-use plastic straws. (HB 771) Cont’d 8

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8 Recyclable Materials: Requires municipalities to address contamination of recyclable materials. (HB 771) Red Tide: Investments of $3 million per year for six years in red tide mitigation. (SB 1552) ETHICS Blind Trust: Prohibits public officials from placing their assets in blind trusts. (SB 702) GOVERNANCE Vegetable Gardens: Prevents local governments from regulating residential vegetable gardens. (SB 82) HEALTHCARE Drug Imports: Allows drugs approved by the U.S. Food and Drug Administration to be imported into Florida by Canada and other countries. (HB 19) Firefighters (Signed): Provides certain benefits to firefighters who are diagnosed with cancer and benefits to the families of firefighters who die as a result of cancer or cancer treatment. (SB 426) Opioid Lawsuit: Would allow state lawyers to access a Florida Department of Health database of patients’ opioid prescriptions. State Attorney General Ashley Moody needs the database for a lawsuit alleging Walgreens and CVS “raced to sell as many opioids as possible” in Florida while failing to stop suspicious shipments of drugs. (HB 1253) Needle Exchange: Expands the pilot needle exchange established in Miami-Dade County by allowing other counties to create their own programs with the approval of their county commissions. (SB 366) Telehealth: Establishes a regulatory framework for telehealth. (HB 23) HUMAN RIGHTS Human Trafficking: Requires police, hotel employees and massage parlor workers to get training in how to look for signs of human trafficking. (HB 851) IMMIGRATION AND LOCAL LAW ENFORCEMENT Sanctuary Cities: Prohibits local governments from not cooperating with federal officials, which would require local law enforcement to hold undocumented workers at least 48 hours past their detainer sentences while awaiting federal authorities to pick them up for deportation. Cont’d 9

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9 Gives the Florida attorney general the power to pursue civil action against governments that don’t cooperate. (SB 168) INSURANCE Assignment of Benefits: Limits attorneys’ fees in disputes over assignment of benefits between insurance companies and contractors and authorizes policies that aren’t subject to assignment of benefits. (HB 7065) MARIJUANA Smoking (Signed): Repeals a ban on smokable medical marijuana. (HB 7015/SB 182) PUBLIC RECORDS Law Enforcement Agencies (Signed): Expands exemption for employees who work for law enforcement, which previously only kept private the addresses of officers. Expansion includes exempting the addresses of civilians who work at law enforcement agencies, too. (SB 248) Mass Shootings: Would prohibit the disclosure of photos, video or recordings that capture a mass shooting. (SB 186) Voter Records: Creates a public records exemption for information related to a voter registration applicant’s or voter’s prior felony conviction and for information on preregistered voter registration applicants who are 16 or 17 years old. (HB 281) SMOKING AND VAPING Vaping (Signed): Implements constitutional amendment that banned vaping in indoor workplaces. (SB 7012) TRANSPORTATION Ride Shares: Allows Uber, Lyft and other ride share services to provide non-emergency trips to the hospital for Medicaid patients. (HB 411) Texting: Makes driving while texting a primary offense, meaning law enforcement can stop motorists for just that offense. (HB 107) UTILITIES Underground Power Lines: Creates a new process for utilities to pass along costs to customers for storm protection projects, such as installing underground power lines. (SB 796) Cont’d 10

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10 There were also a few noteworthy bills that ended the session with an “F”. Wells (Failed): Allow anyone fearing contamination to request the health department test their water source, requires samples be analyzed no more than three business days later. (SB 1100) Conflict of Interest (Failed): Prohibiting a state public officer from voting in an official capacity on any measure that he or she knows would inure to the special private gain or loss of certain principles, parent organizations or subsidiaries of a corporate principal, relatives, or business associates of the officer; revising disclosure requirements applicable to state public officers in the event of a voting conflict, etc. (SB 1008) Genetic Testing (Failed): Restricts insurance companies from using genetic testing information in selling policies or setting rates. (HB 879/SB 258) Personal Injury Protection (Failed): Eliminates Florida’s no-fault auto insurance system, where drivers are required to carry personal injury protection coverage to help pay medical bills after accidents. (HB 733/SB 1052) Low THC (Failed): Caps at 10 percent the amount of tetrahydrocannabinol, the naturally occurring element in marijuana that produces a high. (HB 7117) Recreational Pot (Failed): To make recreational marijuana legal. (HB 1117/SB 1780) Spanking (Failed): Bans corporal punishment as a disciplinary option for teachers and principals. (HB 1361/SB 1120) Discrimination (Failed): Provides that sexual orientation and gender identity are impermissible grounds for discrimination in public lodging establishments and public food service establishments; revises provisions of Florida Civil Rights Act of 1992 and Fair Housing Act to include sexual orientation and gender identity; provides exception for constitutionally protected free exercise of religion. (HB 485/SB 430)

If you have any questions regarding any of these bills or the impacts of the same, you should contact your general counsel or feel free to contact our office directly.

By: Sherry G. Sutphen

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EVIDENCE-ADMISSIBILITY OF EXPERT TESTIMONY

In a sua sponte, per curiam opinion issued on May 23, 2019, the Florida Supreme Court announced its decision to adopt the Daubert standard, in lieu of the Frye standard, to evaluate the admissibility of opinion testimony offered by expert witnesses in state court proceedings. By way of this decision, the Supreme Court receded from its prior decision, issued only last year, wherein the Court decided to not adopt the Legislature’s Daubert amendments to the Evidence Code and to retain the Frye standard. See DeLisle v. Crane Co., 258 So. 3d 1221, 1229 (Fla. 2018).

The general premise in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) states that an

expert opinion is admissible if the scientific technique on which the opinion is based is “generally accepted” as reliable in the relevant scientific community. The Frye test, as subsequently applied by the courts, developed into a rather liberal standard for the admission of expert testimony, which has been subject to frequent criticism by practitioners for being too vague and unable to reliably manage complex scientific testimony.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court

effectively overruled Frye in federal courts. The Court emphasized the importance of a trial judge’s “gatekeeping responsibility” when admitting expert testimony and listed a non-exhaustive list of factors to consider such as: 1) whether the expert’s technique or theory can tested and assessed for reliability; 2) whether the technique or theory has been subject to peer review and publication; 3) the known or potential rate of error of the technique or theory; 4) the existence and maintenance of standards and controls; and 5) whether the technique or theory has been generally accepted in the scientific community. The court noted that “a key question to be answered…will be whether [an expert’s technique or theory] can be (and has been) tested,” implying that particular importance should be given to the testing for reliability factor. Daubert requires that the trial judge ensure that any and all scientific testimony or evidence admitted is not only relevant, but also reliable.

Although there is some academic dispute on this point, the Daubert standard is viewed by

most practitioners as being a more stringent standard for the admissibility of expert testimony which, in turn, generally favors defendants in civil litigation. Accordingly, this decision represents a positive development for the defense bar and our valued clients. Additionally, this decision creates consistency between the state and federal courts, in Florida, with respect to the admissibility of expert testimony and will promote fairness and predictability in the legal system, as well as help lessen forum shopping.

By: Michael J. Roper

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FIRM NEWS

Orlando’s Best Lawyers

Michael M. Bell and Michael J. Roper were recently named to the Orlando Magazine’s list of Orlando’s Best Lawyers for 2019. That list was compiled based upon an extensive peer-review survey, asking established local lawyers to name top practitioners in their particular fields. The lawyers surveyed were asked to identify the lawyer to whom they would refer a close friend or relative needing legal representation, if they could not handle the case themselves.

WELCOME TO THE FIRM!

Bell & Roper, P.A., would like to announce that

Braulio M. Rodriguez

has become associated with the firm.

CONTACT A MEMBER OF THE FIRM

Michael M. Bell – mbell@bellroperlaw.com Sherry G. Sutphen - ssutphen@bellroperlaw.com

Michael J. Roper - mroper@bellroperlaw.com David B. Blessing - dblessing@bellroperlaw.com

Michael H. Bowling - mbowling@bellroperlaw.com Frank M. Mari - fmari@bellroperlaw.com

Joseph D. Tessitore - jtessitore@bellroperlaw.com Mai M. Le - mle@bellroperlaw.com

Dale A. Scott - dscott@bellroperlaw.com John M. Janousek - jjanousek@bellroperlaw.com

Christopher R. Fay - cfay@bellroperlaw.com Jennifer C. Barron - jbarron@bellroperlaw.com

Cindy A. Townsend - ctownsend@bellroperlaw.com Nicholas J. Mari – nmari@bellroperlaw.com

Anna E. Engelman - aengelman@bellroperlaw.com Braulio M. Rodriguez - brodriguez@bellroperlaw.com

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Questions, comments or suggestions regarding our newsletter, please let us know your

thoughts by contacting John Janousek at jjanousek@bellroperlaw.com

THE INFORMATION PRINTED IN THIS NEWSLETTER IS FACT BASED, CASE SPECIFIC INFORMATION AND SHOULD NOT, UNDER ANY CIRCUMSTANCES, BE CONSIDERED SPECIFIC LEGAL ADVICE REGARDING A PARTICULAR MATTER OR SUBJECT. PLEASE CONSULT YOUR ATTORNEY OR CONTACT A MEMBER OF OUR FIRM IF YOU WOULD LIKE TO DISCUSS SPECIFIC CIRCUMSTANCES AND THE LAW RELATED TO SAME.