THE SUPREME COURT OF FLORIDA

CASE NO.: SC11-1148 L.T. NO.: 07-00508CV-C-MCR/EMT

ESTATE OF MICHELLE EVETTE MCCALL, By and Through Co-Personal Representatives Edward M. McCall II, Margarita F. McCall and Jason Walley, EDWARD M. MCCALL, MARGARITA F. MCCALL, JASON WALLEY, Appellants, v. UNITED STATES OF AMERICA, Appellee. ________________________________________/

AMICUS CURIAE BRIEF OF THE FLORIDA JUSTICE

ASSOCIATION; AARP; FLORIDA AFL-CIO; AND FLORIDA PUBLIC EMPLOYEE COUNCIL 79,

AFSCME, AFL-CIO, IN SUPPORT OF APPELLANTS

Barbara W. Green, Esq. Joel S. Perwin, P.A. Barbara Green, P.A. 169 E. Flagler Street 300 Sevilla Ave., Suite 209 Suite 1422 Coral Gables, FL 33134 Miami, FL 33131 Fla. Bar. No.: 264628 Tel: (305) 779-6090 Fax: (305) 779-6095 By: Joel S. Perwin Fla. Bar No.: 316814 (continued)

Kenneth W. Zeller, Esq. Kelly Bagby, Esq. AARP Foundation Litigation Michael Schuster, Esq. AARP 601 E. Street, N.W. Washington, DC 20049

AFSCME Florida 3064 Highland Oaks Terrace Tallahassee, FL 32301 Florida AFL-CIO 135 S. Monroe Street Tallahassee, FL 32301

TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii I. IDENTITY AND INTEREST OF AMICUS CURIAE ........................ 1 II. SUMMARY OR ARGUMENT ............................................................ 2 III. ARGUMENT ........................................................................................ 4 IV. CONCLUSION ................................................................................... 19 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE SERVICE LIST

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TABLE OF AUTHORITIES

Cases Amos v. Mathews, 99 Fla. 1, 126 So. 308 (1930) .................................................................................... 7 Arizona Copper Co. v. Hammer, 250 U.S. 400 (1919) ................................................................................................... 8 Bay County v. Town of Cedar Grove, 992 So. 164, 168 (Fla. 2008) ..................................................................................... 2 Best v. Taylor Machine Works, 179 Ill. 2d 367, 689 N.E. 2d 1057 (1997) ............................................................... 16 Bradford v. Shine, 13 Fla. 393, 1869 W.L. 1558 (1869) ......................................................................... 7 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) .................................................................................... 12, 13, 15 City of Tampa v. State ex rel. Evans, 19 So. 2d 697 (Fla 1944) ........................................................................................... 9 Connerly v. State Personnel Bd., 92 Cal. App. 4th 16 (Cal. Ct. App. 2001) ................................................................ 12 Dunn v. Blumstein, 405 U.S. 330 (1972) ........................................................................................... 11, 16 Ferdon ex rel. Petrucelli v. Wisconsin Patients Compensation Fund, 284 Wis. 2d 573, 701 N.W. 2d 440 (Wisc. 2005) ............................................. 17, 18 Holley v. Adams,

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238 So. 2d 401 (Fla. 1970) ........................................................................................ 7 In re Sherbrooke Sodding Co., 17 F. Supp. 2d 1026 (D. Minn. 1998) ..................................................................... 15 Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002), cert. denied, 539 U.S. 915 (2003)............................................................................ 14 Kenyon v. Hammer, 688 P.2d 961 (Ariz. 1984) ................................................................................. 14, 15 Kluger v. White, 281 So. 2d 1 (Fla. 1973) ........................................................................... 3, 4, 10, 13 Kusper v. Pontikes, 414 U.S. 51 (1973) ................................................................................................... 11 Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) ............................................................................................. 9, 10 Massey v. Charlotte County, 842 So. 2d 142 (Fla. 2d DCA 2003) ........................................................................ 15 M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed 579 (1819) .............................................................. 8 Mitchell v. Moore, 786 So. 2d 521 (Fla. 2001) .................................................................................. 4, 14 Moore v. Thompson, 126 So. 2d 543 (Fla. 1960) .................................................................................... 3, 9 Munn v. People of State of Illinois, 94 U.S. 113 (1876) ..................................................................................................... 8 North Florida Women’s Health and Counseling Service, Inc. v. State,

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866 So. 2d 612 (Fla. 2003) ....................................................................... 3, 9, 10, 13 Parham v. Florida Health Sciences Center, Inc., 35 So. 3d 920 (Fla. 2d DCA), review dismissed, 38 So. 3d 771 (Fla. 2010) .......................................................................................... 6 Psychiatric Assocs. v. Siegel, 610 So. 2d 419 (Fla. 1992), receded from on other grounds, Agency for Health Care Admin. v. Associated Indust. of Fla., Inc., 678 So. 2d 1239 (Fla. 1996), cert. denied, 520 U.S. 1115 (1997) ......................................................................... 14 Randale v. Sorrell, 548 U.S. 230 (2006) ................................................................................................. 10 Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115 (1989) .......................................................................................9, 10, 11 Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147 (1939) ................................................................................................. 12 Sebring Airport Authority v. McIntyre, 783 So. 2d 238 (Fla. 2001) .................................................................................... 7, 8 Shelton v. Tucker, 364 U.S. 479 (1960) ........................................................................................... 11, 12 Smith v. Department of Insurance, 507 So. 2d 1080 (Fla. 1987) .......................................................................... 2, 3, 7, 8 State v. J.P., 907 So. 2d 1101 (Fla. 2004) .................................................................................... 10 State v. Lee, 356 So. 2d 276 (Fla. 1978) ........................................................................................ 8

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Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985) ................................................................................................. 15 United States v. Classic, 313 U.S. 316 (1941) ................................................................................................... 8 United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000) .............................................................................. 11, 12, 13, 14 University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993), cert. denied, 510 U.S. 915 (1993) ................................................................................ 4, 5, 6, 8, 10 Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) ................................................................................................. 12

Other Authorities

Art. I, § 21, Fla. Const. .............................................................................................. 4

Ch. 2003-416, § 1, Laws of Florida ........................................................................... 5

§ 766.118, Fla. Stat. ................................................................................................... 1 A. Brownstein, The Religion Clauses as Mutually Reinforcing Mandates: Why the Arguments for Rigorously Enforcing the Free Exercise Clause and Establishment Clause Are Stronger When Both Clauses Are Taken Seriously, 32 Cardozo L. Rev. 1701 (May 2011) ..................................................................... 13 L. Finley, The Hidden Victims of Tort Reform: Women, Children and Elderly, 53 Emory L.J. 1263 (2004) ................................................................................ 17, 18 A. France, Le Lys Rouge (1894) .............................................................................. 16 R. McCarthy, Aegrescit Medendo: Addressing Barriers to Medical Malpractice

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Litigation Faced by the Elderly, 18 Elder L.J. 391 (2011) .......................................................................................... 19 Sheperd, Tort Reform Winners and Losers: The Competing Effects of Care and Activity Levels, 55 UCLA L. Rev. 905 (April 2008) ........................................................................ 18

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I. IDENTITY AND INTEREST OF AMICUS CURIAE

The Florida Justice Association, formerly Academy of Florida Trial

Lawyers, is an association of 4,000 members committed to the rights of access to

our courts and trial by jury, and protecting Florida’s citizens from civil wrongs.

These interests are implicated by the issues before the Court. The FJA has been

actively involved in debating those issues since the earliest discussions of the caps

on medical-malpractice damages prescribed in § 766.118, Fla. Stat. The FJA has

often participated as an amicus curiae in Florida’s courts, discussing the

constitutional questions at the heart of the issues presented.

AARP is a nonpartisan, nonprofit organization dedicated to addressing the

needs and interests of people age fifty and older. Through education, advocacy

and service, AARP seeks to enhance the quality of life for all by promoting

independence, dignity, and purpose. As the country's largest membership

organization, AARP advocates for access to affordable healthcare and for

controlling costs without compromising quality. AARP supports laws and policies

designed to protect the rights of healthcare consumers to go to court and obtain

redress when they have been victims of neglect or abuse.

2

The Florida AFL-CIO is the state federation of over six-hundred and fifty

local labor unions representing approximately five-hundred thousand workers,

retirees and their families from a wide range of trades and professions. The

Florida AFL-CIO's Constitution calls for the vigorous promotion and defense of

the interests of working people and their quest for equal opportunity, jobs with

dignity, economic justice and fair representation at all levels of their government.

The organization believes that working people are placed at an incredible

disadvantage whenever their access to the courts or their ability to be made whole

through our justice system is diminished, and is opposed to any policies that

directly or indirectly cause this to happen.

Florida Public Employees Council 79, AFSCME, AFL-CIO, is Florida's

second largest union, representing more than 110,000 employees working for the

State, public universities, school boards, cities, counties, and private, non-profit

hospitals. II. SUMMARY OF ARGUMENT1

Our purpose in this Brief is not to replicate, nor could we, the detailed

analysis provided by the Plaintiffs’ able counsel, but to review the broader

1The issues concerning the constitutionality of a Florida Statute arise in this Court de novo. Bay County v. Town of Cedar Grove, 992 So. 164, 168 (Fla. 2008).

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underlying Constitutional principles. At the heart of this proceeding is the

significant difference between enduring Constitutional principles on the one hand,

and transient, political legislative determinations on the other. The Court said in

Smith v. Department of Insurance, 507 So. 2d 1080, 1089 (Fla. 1987): “[I]f it were

permissible to restrict the constitutional right by legislative action, without

meeting the conditions set forth in [Kluger v. White, 281 So. 2d 1 (Fla. 1973)], the

constitutional right of access to courts for redress of injuries would be

subordinated to, and a creature of, legislative grace or, as Mr. Smith puts it,

‘majoritarian whim.’ There are political systems where Constitutional rights are

subordinated to the power of the executive or legislative branches, but ours is not

such a system.”

This fundamental distinction is the predicate for rules routinely applied by

our Courts in appraising the permissibility of legislative encroachments upon

Constitutional rights. One is that notwithstanding the traditional judicial

deference to the legislative process, it is not reflexive. To the contrary, such

deference is appropriate only when legislative declarations “are based on actual

findings of fact, and even then courts must conduct their own inquiry.” North

Florida Women’s Health and Counseling Service, Inc. v. State, 866 So. 2d 612,

627 (Fla. 2003). Such findings “are not entitled to the presumption of correctness

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if they are nothing more than recitations amounting only to conclusions and they

are always subject to judicial inquiry.” Moore v. Thompson, 126 So. 2d 543, 549

(Fla. 1960). The legislative history of the Statutes at issue must be filtered

through that lens.

Second, in enforcing rights subject to strict scrutiny, Constitutional

decisionmaking must limit legislative encroachments to the least restrictive

alternative. Florida’s right of access to courts is an embodiment of that principle.

Third, in order to survive Constitutional scrutiny, legislative restrictions

must treat people equally. In a variety of ways, a cap on damages, which penalizes

the recovery of those who are not wealthy, the elderly, children, and those who are

hurt the most, and which targets the element of damages most important to those

who are not wealthy, fails that test. These principles underlie the more specific

analysis provided by the Plaintiffs.

III. ARGUMENT: THE PLAINTIFFS’ POSITION IS

SUPPORTED BY BROAD PRINCIPLES OF CONSTITUTIONAL SUPREMACY.

In University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993), cert. denied,

510 U.S. 915 (1993), this Court applied the familiar two-part test of Kluger v.

White, 281 So. 2d 1 (Fla. 1973), in upholding the medical-malpractice arbitration

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provisions now codified in Chapter 766, Fla. Stat. Kluger held that a Florida

Statute can constitutionally impinge upon the constitutional right of access to the

courts (Art. I, § 21, Fla. Const.) if it either provides a “reasonable alternative” or

reflects “an overpowering public necessity . . . and no alternative method of

meeting such public necessity . . . .” 281 So. 2d at 4. This Court said in Mitchell

v. Moore, 786 So. 2d 521, 528 (Fla. 2001) that this is a “fundamental right” of

Florida’s citizens, equivalent to rights requiring strict scrutiny under the U.S.

Constitution.

In Echarte, the Court accepted legislative declarations both that a medical-

malpractice insurance crisis existed in Florida at the time, and that the statutory

arbitration provisions, which permit defendants to drastically slash a plaintiff’s

non-economic damages, were permissible because “the record supports the

conclusion that no alternative or less onerous method exists.” 618 So. 2d at197

(emphasis added). Deferring to the legislative findings, the Court held: “[I]t is

clear that both the arbitration statute, with its conditional limits on recovery of

noneconomic damages, and the strengthened regulation of the medical profession

are necessary to meet the medical malpractice insurance crisis. Further, no

alternative or less onerous method to meet the crisis has been shown.” Id.

(emphasis added).

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Ten years after Echarte, the Florida Legislature declared that its prior

finding, upon which this Court had based its decision--that the perceived crisis

could only be solved by the arbitration provisions now found in Chapter 766--was

false. In fact, it said, not only were the medical-malpractice provisions upheld in

Echarte not the only way to solve the perceived problem; they had done nothing to

solve it, and the “problem” had worsened. Therefore, far more draconian measures

were required, and now they were the only way to address this concern.2

2This was based on findings of the Governor’s Select Task Force on Health Care Professional Liability Insurance, see Ch. 2003-416, § 1, Laws of Florida, of a “medical malpractice crisis of unprecedented magnitude.” The Task Force found that this crisis was responsible for increases in medical-malpractice liability insurance; that caps on non-economic damages would solve this problem; and in fact that “there is no alternative measure of accomplishing such result without imposing even greater limits upon the ability of persons to recover damages for medical malpractice” (emphasis added). The Task Force Report can be found at http://www.doh.state.fl.us/myflorida/DOH-Large-Final%20Book.pdf.

Once

again, as in Echarte, the Legislature had identified a medical-malpractice insurance

crisis--this one even more serious (“unprecedented magnitude”) than the crisis that

it had said could only be solved through the draconian arbitration provisions of

Chapter 766 upheld in Echarte. Now a new and even more draconian restriction

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was the only way of solving this problem. In short, the legislative basis for the

Echarte holding was false.3

In stark contrast, as this Court wrote in Bradford v. Shine, 13 Fla. 393, 1869

W.L. 1558, *6 (1869), when a provision “is incorporated in the constitution, it has

The import of this argument is not only that Echarte should be overruled,

and that the medical-malpractice arbitration Statutes should be invalidated. A

broader lesson is that the manifest gamesmanship of the Florida Legislature on this

issue illustrates the fundamental distinction between enduring Constitutional

protections on one hand, and transitory legislative enactments on the other.

A Floridian’s Constitutional right of access to the courts embraces not only a

fundamental right, but a fundamental principle--that the Constitution sanctifies

enduring precepts, sheltered from the kind of transitory policies illustrated by the

inconsistent declarations of two different Legislatures on the subject at hand. The

Statute at issue here is another example of laws and sausages--a caldron of special

disparate interests usurping prior laws in pursuit of their own agendas, and trading

them off in pieces in eleventh-hour compromises written in double-speak.

3See also Parham v. Florida Health Sciences Center, Inc., 35 So. 3d 920 (Fla. 2d DCA) (certifying the question of whether Echarte remains viable in light of the present value of the monetary amounts prescribed in the arbitration Statutes that were upheld in Echarte), review dismissed, 38 So. 3d 771 (Fla. 2010).

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become more permanent as a law by being thus placed beyond the reach of the

legislature to offer or repeal it according to the whim of any party which might

afterwards be in temporary ascendency in the state.”4

In Chief Justice Marshall’s famous words in M’Culloch v. Maryland, 17 U.S.

(4 Wheat.) 316, 407, 415, 4 L.Ed 579 (1819), quoted in Sebring Airport Authority

v. McIntyre, 783 So. 2d 238, 244 n. 4 (Fla. 2001): “It is a Constitution we are

expounding . . . a Constitution intended to endure for ages to come and

consequently, to be adapted to the various crises of human affairs.” “[I]n setting up

Thus, as noted at the outset,

the Court said in Smith v. Department of Insurance, 507 So. 2d 1080, 1089 (Fla.

1987), that Constitutional rights will not “be subordinated to, and a creature of,

legislative grace or, as Mr. Smith puts it, ‘majoritarian whim.’ There are political

systems where constitutional rights are subordinated to the power of the executive

or legislative branches, but ours is not such a system.”

4See Sebring Airport Authority v. McIntyre, 783 So. 2d 238, 244 n. 5 (Fla. 2001) (emphasis deleted) (“[A]lthough in the discharge of [judges’] duty they may render a law inoperative by declaring it unconstitutional, it does not arise from any supremacy which the judiciary possesses over the Legislature, but from the supremacy of the constitution over both”); Holley v. Adams, 238 So. 2d 401, 405 (Fla. 1970), quoting Amos v. Mathews, 99 Fla. 1, 126 So. 308 (1930) (“[T]o the extent . . . an act violates expressly or clearly implied mandates of the Constitution, the act must fall, not merely because the courts so decree, but because of the dominant force of the Constitution, an authority superior to both the Legislature and the Judiciary”).

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an enduring framework of government [the framers] undertook to carry out for the

indefinite future and in all the vicissitudes of the changing affairs of men, those

fundamental purposes which the instrument itself discloses.” United States v.

Classic, 313 U.S. 316 (1941).5

1. There Must Be Sufficient Factual Predicate for the Statute in

Question. As Echarte holds, the Court gives deference to legislative factual

findings. However, an encroachment upon fundamental rights such as access to

courts requires strict scrutiny, see supra p. 4, and this Court often has echoed the

U.S. Supreme Court’s declaration that review of legislative findings is not a

This principle is at the heart of the Plaintiffs’ challenge. There are at least

three precepts that help assure such Constitutional superiority.

5See Munn v. People of State of Illinois, 94 U.S. 113, 134 (1876) (“[T]he law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations”); M’Culloch, supra (“It is the very essence of [Constitutional] supremacy, to remove all obstacles to its actions within its own sphere, and so to modify every power in subordinate governments, as to exempt its own operations from their influence”). Cf. Arizona Copper Co. v. Hammer, 250 U.S. 400, 450-51 (1919) (McReynolds, dissenting) (“Until now, I had supposed that a man’s liberty and property--with their essential incidents--were under the protection of our charter and not subordinate to whims or caprices or fanciful ideas of those who had for the day to constitute the legislative majority”). Smith v. Department of Insurance, 507 So. 2d at 1099 (Adkins, J., concurring in part) (“I voted with the majority in State v. Lee, 356 So. 2d 276 (Fla. 1978), influenced by an alleged crisis in the insurance business. This was a mistake”).

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“toothless” inquiry. Logan v. Zimmerman Brush Co., 455 U.S. 422, 439 (1982).

The Court said in North Florida Women’s Health and Counseling Service, Inc. v.

State, 866 So. 2d 612, 627 (Fla. 2003), quoting Moore v. Thompson, 126 So. 2d

543, 549 (Fla. 1960):

While courts may defer to legislative statements of policy and fact, courts may do so only when those statements are based on actual findings of fact, and even then courts must conduct their own inquiry. The general rule is that findings of fact made by the legislature are presumptively correct. However, it is well-recognized that the findings of fact made by the legislature must actually be findings of fact. They “are not entitled to the presumption of correctness if they are nothing more than recitations amounting only to conclusions and they are always subject to judicial inquiry.”

Accord, City of Tampa v. State ex rel. Evans, 19 So. 2d 697 (Fla 1944) (“legislative

findings of fact are not conclusive and may be contested in court”).

As the U.S. Supreme Court put it in Sable Communications of California,

Inc. v. F.C.C., 492 U.S. 115, 129 (1989): Beyond the fact that whatever deference is due legislative findings would not foreclose our independent judgment of the facts bearing on an issue of constitutional law, our answer is that the congressional record contains no legislative findings that would justify us in concluding that there is no constitutionally acceptable less restrictive means . . . .

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The Supreme Court in Sable discarded “conclusory statements in debates by

proponents of the bill, as well as similar assertions in hearings . . . .” Id. Cf.

Randale v. Sorrell, 548 U.S. 230, 285 (2006) (Souter, J., dissenting) (judicial

deference should not be “overly complaisant”).

Given that the factual findings that bolstered this Court’s decision in Echarte

have now been abandoned and contradicted, the present inquiry must be anything

but “toothless.” Logan v. Zimmerman Brush Co., supra, 455 U.S. at 439. The

legislative history of the Statute at issue is the subject of the Amicus Brief filed by

the Florida Consumer Action Network and Floridians for Patient Protection.

2. Constitutional Decisionmaking Must Limit Legislative Encroachment

to the Least Restrictive Alternative. As noted, the Kluger test is equivalent to strict

scrutiny under the U.S. Constitution. It requires that “a court must review the

legislation to ensure that it furthers a compelling State interest through the least

intrusive means.” North Florida Women’s Health & Counseling Svcs., Inc. v.

State, 866 So. 2d 612, 625 n.16 (Fla. 2003). See State v. J.P., 907 So. 2d 1101,

1117 (Fla. 2004) (“the constitutionality of the ordinances will hinge upon the nexus

between the asserted interests and the means chosen, and whether this is the least

restrictive alternative to achieve the goals”). The federal analogue is that “even

though the governmental purpose [may] be legitimate and substantial, that purpose

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cannot be pursued by means that broadly stifle fundamental personal liberties when

the end can be more narrowly achieved. The breadth of legislative abridgment

must be viewed in the light of less drastic means for achieving the same basic

purpose.” Shelton v. Tucker, 364 U.S. 479, 488 (1960). “If the State has open to it

a less drastic way of satisfying its legitimate interests, it may not choose a

legislative scheme that broadly stifles the exercise of fundamental personal

liberties.” Kusper v. Pontikes, 414 U.S. 51, 59 (1973). See Sable Communications

of California, Inc. v. F.C.C., 492 U.S. 115, 126 (1989) (“least restrictive means to

further the articulated interest”).

Laws that impact fundamental rights “must be drawn with precision, and

must be tailored to serve their legitimate objectives. If there are other, reasonable

ways to achieve those goals with a lesser burden on constitutionally protected

activity, a State may not choose the way of greater interference. If it acts at all, it

must choose less drastic means.” Dunn v. Blumstein, 405 U.S. 330, 343 (1972)

(citations and internal quotation marks omitted). “If a less restrictive alternative

would serve the Government’s purpose, the legislature must use that alternative.”

United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000)

(citations omitted). Here, such alternatives could include much stricter penalties

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for repeat offenders; uniform protocols for protecting patient safety; and

comprehensive mandatory insurance programs, creating economies of scale.

In determining whether a legislative body has adopted the least restrictive

means, “[m]ere legislative preferences or beliefs respecting matters of public

convenience may well support regulation directed at other personal activities, but

be insufficient to justify such as diminishes the exercise of rights so vital to the

maintenance of democratic institutions.” Schneider v. State of New Jersey, Town of

Irvington, 308 U.S. 147, 161 (1939), quoted in Shelton, 364 U.S. at 489. Defenders

of legislation subject to strict scrutiny may not rely upon “sheer speculation”;

“amorphous claim[s]”; “recitation[s] of a ‘benign’ or legitimate purpose”; or

“simple legislative assurances of good intention . . . .” City of Richmond v. J.A.

Croson Co., 488 U.S. 469, 499-500 (1989) (majority opinion). Conclusory

legislative statements, “unhelpful, self-evident” generalities, and “anecdote and

supposition,” will not suffice. Playboy Entertainment Group, Inc., 529 U.S. at 822.

To the contrary, “[u]nder the strict scrutiny test, governmental specificity and

precision are demanded.” Connerly v. State Personnel Bd., 92 Cal. App. 4th 16, 36

(Cal. Ct. App. 2001). “It is not enough that the means chosen to accomplish the

purpose are reasonable or efficient.” Id. at 37, citing Wygant v. Jackson Bd. of

Educ., 476 U.S. 267, 279 (1986) (plurality opinion). When a Legislature has

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impinged upon a fundamental right, in order “[t]o sustain its statute, [it is] required

to show that [the option it selected is] the right answer.” Playboy Entertainment

Group, Inc., 529 U.S. at 819.

“[G]eneralized assertion[s]” are insufficient not because of disrespect for

legislators, but because they suggest that there was “no guidance for [the]

legislative body to determine the precise scope of the injury it [sought] to remedy,”

J.A. Croson Co., 488 U.S. at 498. “Laws that poorly serve the state’s goals, or that

do not appear to advance them at all, cast doubts on the veracity of the state’s

alleged goals.”6

The burden is upon the Legislature to prove an overwhelming public

necessity or compelling government interest, and the lack of an alternative method.

See North Florida Women’s at 625 n. 16 (“the State must prove that the legislation

furthers a compelling State interest through the least intrusive means”); Kluger v.

6A. Brownstein, The Religion Clauses as Mutually Reinforcing Mandates: Why the Arguments for Rigorously Enforcing the Free Exercise Clause and Establishment Clause Are Stronger When Both Clauses Are Taken Seriously, 32 Cardozo L. Rev. 1701, 1721 (May 2011). See also J.A. Croson Co., 488 U.S. at 493 (plurality opinion) (“Indeed, the purpose of strict scrutiny is to ‘smoke out’ illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen ‘fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype”).

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White, 281 So. 2d at 4 (“the Legislature is without power to abolish such a right . . .

unless the Legislature can show an overpowering public necessity for the

abolishment of such right, and no alternative method of meeting such public

necessity can be shown”).7

It follows that the courts will not “assume that a plausible, less restrictive

alternative would be ineffective.” Playboy Entertainment Group, Inc., 529 U.S. at

824. Rather, it is “for the Government, presented with a plausible, less restrictive

alternative, to prove the alternative to be ineffective . . . .” Id. at 823. “[W]hen

constitutional rights are at issue, strict scrutiny requires legislative clarity and

evidence demonstrating the ineffectiveness of proposed alternatives.” Johnson v.

City of Cincinnati, 310 F.3d 484, 504 (6th Cir. 2002) (citation omitted), cert.

denied, 539 U.S. 915 (2003). Likewise, expert opinions should be confirmed by

7See, e.g., Mitchell v. Moore, 786 So. 2d 521, 527 (Fla. 2001) (striking down statute restricting certain prisoners’ right of access to courts, because “[w]e find nothing in the act indicating that the Legislature was faced with [an overpowering public necessity] and that there was no alternative method of remedying it”); Psychiatric Assocs. v. Siegel, 610 So. 2d 419, 423 (Fla. 1992), receded from on other grounds, Agency for Health Care Admin. v. Associated Indust. of Fla., Inc., 678 So. 2d 1239 (Fla. 1996) (regarding affirmative defenses) (“the legislature failed to show that ‘no alternative method’ exists for reaching its goal”), cert. denied, 520 U.S. 1115 (1997); id. at 425 (“the record in this case does not show that the bond requirement is the only method of meeting the medical malpractice crisis and encouraging peer review. Consequently, we hold that the statutes are an unconstitutional restriction on a plaintiff’s right of access to the courts”).

16

supportive evidence. Cf. Playboy Entertainment Group, Inc., 529 U.S. at 820

(“The Government made no attempt to confirm the accuracy of its estimate through

surveys or other field tests”).8 And in assessing whether less onerous alternatives

exist, a court is not limited to what was actually investigated, considered, or

concluded by the legislature.9

8See also Kenyon v. Hammer, 688 P.2d 961, 979 (Ariz. 1984) (absent a “legislative or adjudicative record to demonstrate the effect that abolition of the discovery rule may have on [medical] malpractice premiums,” and in the face of statistics debunking any correlation, “we cannot find the requisite showing that the abolition of the discovery rule was a necessary step to achieve the compelling state interest in reducing the cost of medical care or increasing the availability of such care. Under the strict scrutiny test such a showing must be found from legislative or adjudicative facts and not from hypothesis, speculation or ‘deference’ to some unspecified legislative conception”; and there was “an even greater lack of facts to support the hypothesis that the abolition of the discovery rule was the ‘least restrictive means available’ to achieve the legislative goal of reducing premiums, thus making medical services less costly and more available”). 9See, e.g., J.A. Croson Co., 488 U.S. at 509-10 (plurality opinion) (“the city has at its disposal a whole array of race-neutral devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races”) (listing several); Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 284 & n.19 (1985) (state’s interest in ensuring nonresident attorneys remain knowledgeable of local rules and procedures could be addressed by “requir[ing] mandatory attendance at periodic seminars on state practice”); Massey v. Charlotte County, 842 So. 2d 142, 146-47 & n.3 (Fla. 2d DCA 2003) (suggesting alternatives to the offending code enforcement board procedures as less restrictive alternatives); Kenyon, 688 P.2d at 979 (noting that the malpractice crisis allegedly caused by the long tail period of claims made policies infrequently interacting with the discovery rule is “much more susceptible of being handled by other measures, such as shortening of the statute of limitations or regulation of insurance premiums and procedures”).

Indeed, the failure of a Legislature to consider the

17

effectiveness of alternatives suggests that the law is without foundation, and

therefore unconstitutional.10

3. Legislative Restrictions Must Treat People Equally. In overturning a

cap on non-economic damages in Best v. Taylor Machine Works, 179 Ill. 2d 367,

689 N.E. 2d 1057 (1997), the Illinois Supreme Court quoted with approval the

statement of one of the delegates to the Illinois State Constitutional Convention

that “‘[g]overnments were not made to make the “rich richer and the poor poorer,”

nor to advance the interests of the few against the many; but that the weak might be

protected from the will of the strong; that the poor might enjoy the same rights with

the rich; that one species of property might be as free as another--that one class or

Moreover, the courts may also appraise the

alternatives already prescribed in existing laws that have not been shown to be

unable to remedy the situation. See Dunn, 405 U.S. at 353-54 (lengthy waiting

period for new residents to qualify to vote not the least restrictive method of

preventing fraud, where laws outlawing voter fraud and allowing election-day

challenges to voters’ qualifications already existed). All of these principles guide

the strict scrutiny imposed upon the Statutes at issue.

10See, e.g., In re Sherbrooke Sodding Co., 17 F. Supp. 2d 1026, 1035 (D. Minn. 1998) (“The United States’ failure to consider race, national origin, and gender neutral alternatives strongly suggests the DBE program is Constitutionally flawed”).

18

interest should not flourish by the aid of government, whilst another is oppressed

with all the burdens.’” The concept ridiculed by Anatole France in Le Lys Rouge

(1894) is equally condemned in this country--that “[t]he law, in its majestic

equality, forbids the rich and poor alike to sleep under bridges, to beg in the streets,

and to steal bread.”

When rights depend on legislative whims, those with the least political

power are often the collateral damage. Malpractice victims with low or no income-

-children, the poor, victims of discrimination, the elderly--are not large wage

earners. They may suffer damages that are largely, if not entirely, noneconomic.

Therefore, a cap on noneconomic damages falls most heavily on them. That

conclusion was confirmed, based on empirical research, in L. Finley, The Hidden

Victims of Tort Reform: Women, Children and Elderly, 53 Emory L.J. 1263, 1280-

81 (2004): [Economic damages provide] the most benefit to higher wage earners, and thus women, minorities, and the poor receive lesser amounts of economic loss compensation than more economically well off white men. . . . This makes noneconomic damages take on greater importance for women [and] racial minorities . . . . Damages for aspects of injury that are not tied directly to market-valued activities are likely to comprise a greater proportion of the overall tort damages award for social groups whose wage earning activity is less valued in the market.

19

This conclusion was based in part upon examination of closed cases in Florida. See

id. at 1297-1307. See also Ferdon ex rel. Petrucelli v. Wisconsin Patients

Compensation Fund, 284 Wis. 2d 573, 701 N.W. 2d 440, 466 (Wisc. 2005)

(children are disproportionately affected by a cap on noneconomic damages in

medical malpractice cases, “not only because they suffer a disproportionate share

of serious injuries from medical malpractice, but also because many can expect to

be affected by their injuries over a 60- or 70-year life expectancy”)

This impact may be especially severe for the elderly: they are unlikely to

have any loss of earnings, and their future medical expenses may be relatively low

because of their shorter life expectancy. The Finley analysis demonstrates that

plaintiffs over the age of 65 and under the age of 18 have far lower recoveries for

lost income, and because juries therefore award elderly and minor plaintiffs a

much greater proportion of their overall recoveries in noneconomic damages, a cap

on such damages will significantly hamper their recoveries. This happens

notwithstanding that injuries to young people may cause a lifetime of debilitating

pain; and injuries to elderly people may destroy their remaining years. See id. at

1288-91. It also happens to the victims of discrimination, whose economic stations

are debilitated as a result. Caps on noneconomic damages are like a regressive tax

upon lower-income medical victims, reducing their recoveries “by a higher

20

fraction than they reduce the recoveries of higher-income plaintiffs.” Sheperd, Tort

Reform Winners and Losers: The Competing Effects of Care and Activity Levels, 55

UCLA L. Rev. 905, 946 (April 2008). Caps on non-economic damages also

penalize most the people who are most victimized--who suffer the greatest damage.

See Ferdon at 465: “[T]he greater the injury, the smaller fraction of noneconomic

damages the victim will receive.”

Caps on noneconomic damages will not only deprive such groups of a larger

portion of their damages. In many cases, such caps will operate to deprive them of

access to the courts entirely. A significant cap on noneconomic damages will

present an insurmountable barrier when combined with the high cost of litigating a

medical- malpractice claim. For example, even when the elderly suffer tremendous

pain, and substantial reduction in their quality of life, they are likely to go

uncompensated: The net effect of the non-economic damages caps is to make it less likely that the injuries of the elderly will be redressed through the courts. Their claims, with low economic damages but high non-economic damages, lose too much of their value to be worth pursuing.

R. McCarthy, Aegrescit Medendo: Addressing Barriers to Medical Malpractice

Litigation Faced by the Elderly, 18 Elder L.J. 391 (2011).

21

Even if caps on non-economic damages were facially constitutional, because

they have a disproportional effect on the poor, older persons and minorities, they

are unconstitutional as applied. IV. CONCLUSION

For the reasons stated, it is respectfully submitted that the Court should

accept the Appellants’ arguments in answering the questions certified.

22

Respectfully submitted, Kenneth W. Zeller, Esq. AFSCME Florida Kelly Bagby, Esq. 3064 Highland Oaks Terrace AARP Foundation Litigation Tallahassee, FL 32301 Michael Schuster, Esq. AARP Florida AFL-CIO 601 E. Street, N.W. 135 S. Monroe Street Washington, DC 20049 Tallahassee, FL 32301 Barbara W. Green, Esq. Joel S. Perwin, P.A. Barbara Green, P.A. Alfred I. Dupont Bldg., Suite 1422 300 Sevilla Ave., Suite 209 169 E. Flagler Street Coral Gables, FL 33134 Miami, FL 33131 Fla. Bar No.: 264328 Tel: (305) 779-6090 By:___________________ Joel S. Perwin Fla. Bar No.: 316814

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was

served upon all counsel on the attached Service List on this 2d day of August,

2011. By:___________________________ Joel S. Perwin Fla. Bar No.: 316814

CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Brief complies with the font requirements of Fla. R. App. P. 9.210(a)(2). By:_________________________ Joel S. Perwin Fla. Bar No: 316814

SERVICE LIST

Robert S. Peck Center for Constitutional Litigation 777 6th Street, N.W., Suite 520 Washington, DC 20001 robert.peck@cclfirm.com Counsel for Plaintiffs-Appellants Pamela A. Moine Assistant U.S. Attorney U.S. Attorney’s Office 21 East Garden Street, Suite 4000 Pensacola, FL 32501 Daniel J. Lenerz Thomas M. Bondy Department of Justice Attorneys, Appellate Staff Civil Division, Room 7234 950 Pennsylvania Avenue, N.W. Washington, DC 20530 Daniel.J.Lenerz@usdoj.gov Counsel for Defendant-Appellee Lincoln J. Connolly Rossman Baumberger Reboso Spier & Connolly, P.A. Courthouse Tower, 23rd Floor 44 West Flagler Street Miami, FL 33130 LJC@rbrlaw.com Counsel for Florida Consumer Action Network & Floridians for Patient Protection

Joel S. Perwin Joel S. Perwin, P.A. Alfred I. Dupont Building, Suite 1422 169 E. Flagler Street Miami, FL 33131 jperwin@perwinlaw.com Counsel for Florida Justice Association, et al. Herman J. Russomanno Russomanno & Burrello, P.A. Museum Tower, Suite 2800 Penthouse 150 West Flagler Street Miami, FL 33130 hrussomanno@russomanno.com Counsel for American Bar Association John S. Mills Andrew D. Manko The Mills Firm 203 North Gadsden Street, Suite 1A Tallahassee, FL 32301 jmills@mills-appeals.com Counsel for Neil Vidmar, Ph.D. & Professors

Pamela Jo Bondi Attorney General Diane G. DeWolf Deputy Solicitor General Office of the Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050 Diane.DeWolf@myfloridalegal.com Counsel for State of Florida George N. Meros, Jr. Allen Winsor Gray Robinson, P.A. 301 S. Bronough Street, Suite 600 Tallahassee, FL 32301 george.meros@gray-robinson.com allen.winsor@gray-robinson.com Counsel for the Florida College of Emergency Physicians and the Florida Orthopaedic Society Arthur J. England, Jr. Christopher B. Carbot Greenberg Traurig, P.A. 333 Avenue of the Americas, Suite 4400 Miami, FL 33131-3238 EnglandA@gtlaw.com Counsel for the Florida Hospital Association

Mark Hicks Dinah Stein Hicks, Porter, Ebenfeld & Stein, P.A. 799 Brickell Plaza, Suite 900 Miami, FL 33131 mhicks@mhickslaw.com dstein@mhickslaw.com Counsel for the Florida Medical Association Chris Nuland Law Offices of Christopher L. Nuland, P.A. 1000 Riverside Avenue, Suite 115 Jacksonville, FL 32204 nulandlaw@aol.com Counsel for The Florida Chapter of the American College of Physicians, the Florida Chapter of the American College of Surgeons, the Florida Obstetrical-Gynecologic Society, the Florida Society of Plastic Surgeons, the Florida Society of Thoracic and Cardiovascular Surgeons, the Florida Neurosurgical Society, the Florida Society of General Surgeons, the Florida Society of Dermatology and Dermatologic Surgery, and the Florida Gastroenterologic Society

Cynthia Tunicliff Pennington, Moore, Wilkinson, Bell & Dunbar 215 South Monroe Street, 2nd Floor Tallahassee, FL 32301 cynthia@penningtonlawfrrm.com Counsel for The Safety Net Hospital Alliance of Florida Raoul G. Cantero David Draigh White & Case LLP 200 S. Biscayne Blvd., Suite 4900 Miami, FL 33131-2352 raoul.cantero@miami.whitecase.com ddraigh@miami.whitecase.com Counsel for Coral Gables Hospital, Delray Medical Center, Good Samaritan Medical Center, Hialeah Hospital, North Shore Medical Center, North Shore Medical Center – FMC Campus, Palm Beach Gardens Medical Center, Palmetto General Hospital, St. Mary's Medical Center, and West Boca Medical Center George Christian Christian & Co. 400 W. 15th Street, Suite 400 Austin, TX 78701 george@thechristianco.com Counsel for the Texas Civil Justice League

Fred J. Hiestand 200 I P Street, Suite 110 Sacramento, CA 95811 FHiestand@aol.com Counsel for The Civil Justice Association of California William W. Large Florida Justice Reform Institute 210 South Monroe Street Tallahassee, FL 32301-1824 William@FLJustice.org Counsel for the Florida Justice Reform Institute