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Filing # 173681882 E-Filed 05/22/2023 01:42:32 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA CIVIL ACTION
ROSABELLE BRACKE,
Plaintiff,
Vv. CASE NO. 20000311CA
JOHN CALLAHAN,
Defendant.
/
DEFENDANT’S NOTICE OF FILING SUPPLEMENTAL AUTHORITY
COMES NOW, Defendant, JOHN CALLAHAN, by and through his undersigned counsel,
and hereby gives notice of filing the following case law in support of his Motion in Limine
pursuant to F.S. § 768.0427 (filed April 14, 2023 and set to be heard May 25, 2023):
1 Amended Order Granting Defendant’s Motion in Limine in Stapp, Chaney, et al.,
y. James Brooks and J.B. Coachline, Inc., in the Circuit Court of the Thirteenth Judicial Circuit,
in and for Hillsborough County, Florida, Case No. 17-CA-5664E, dated May 19, 2023 attached
hereto as Exhibit A.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing with the Clerk of the Court
using the E-Filing Portal System which will send a notice of electronic filing to the following: James
E. Moon, Esq.to jmoon@forthepeople.com and angeliaharrison@forthepeople.com on May 22, 2023.
BOY AGNEW POTANOVIC MILLER
Attorneys for Defendant
4415 Metro Parkway, Suite 110
Ft. Myers, Florida 33916
Telephone: 239.208.6500
Facsimile: 239.208.6511
Primary E-Mail: JohnM@bapfirm.com
Secondary E-Mail: service@bapfirm.com
By:_/s/ John M .Miller
John M. Miller
Florida Bar No. 61488
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
GENERAL CIVIL DIVISION
SHARON M. SAPP; STACY M. CHANEY;
etal.,
Plaintiffs, CASE NO.: 17-CA-5664
DIVISION: E
v
JAMES BROOKS; J.B. COACHLINE, INC.,
Defendants.
/
AMENDED ORDER GRANTING DEFENDANTS’ MOTION IN LIMINE
THIS CAUSE came before the Court at a hearing on Defendants’ Motions in Limine
Regarding Evidence of Past and Future Medical Treatment or Services Expenses (the “Motion”).
The hearing occurred on April 21, 2023 and April 24, 2023. David Henry, Esq. and Christopher
Borzell, Esq. of Morgan & Morgan represented Plaintiffs Sharon M. Sapp and Stacy M. Chaney.
Heather Stover, Esq. and Susan Wilson, Esq. of Ogden & Sullivan represented Defendants James
Brooks and J.B. Coachline, Inc.
I Introduction
A. The Question Presented
The Motion presents a question about the temporal reach of recently-enacted section
768.0427, Florida Statutes (the “Statute”). At the time of the April 2023 hearing on the Motion,
both sides agreed that no trial court in Florida has ruled on the applicability of the Statute to
pending cases.
Temporal reach of a new statute is an area covered with some frequency in Florida
Supreme Court jurisprudence. So much so that, with the limited time trial courts have available
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EXHIBIT A
to consider issues like this, it can be challenging to reach an unshakeable conviction that no
controlling case could have been overlooked. But no one has produced a case that squarely
addresses and disposes of the question raised in the Motion.
The question is this: if a new statute is (1) procedural in nature, (2) and the Legislature
has provided direction on temporal reach, (3) does the judicial branch follow its precedent on
temporal reach of procedural statutes or (4) does it defer to the Legislature’s direction?
B. The Arguments
Plaintiffs have the easier argument to digest. So easy that, at first blush, it seems that
extensive discussion is unwarranted. Plaintiffs argue that the Statute itself is substantive. The
temporal reach of substantive statutes is not a difficult part of the law to understand. When a
statute is substantive in nature, there are two questions to ask. First, was there clear evidence of
legislative intent to apply it retroactively? If the answer is yes, then the second question is this:
is retroactive application constitutionally permissible?
The Statute has an effective date of March 24, 2023. And the enacting legislation says
“{e]xcept as otherwise expressly provided in this act, this act shall apply to causes of action filed
after the effective date of this act.” The precedent on retroactivity favors Plaintiffs on this being
“game over.”
But Defendants contend that the statute is not substantive. And the analysis is different
with procedural statutes. The judicial branch has shown the Legislature an answer key how it
interprets the temporal reach of statutes. The Legislature legislates against that background.
The answer key is this:
There is a core assumption that the Legislature makes law for the future.
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If a case comes before the court in which one side asks that a new law apply to past
conduct or a pending case, then the court will first consider whether the new law is substantive or
something else (the “something else” is procedural, remedial, or some combination of the two).
If it is substantive, there are constitutional reasons why the judicial branch must tread
carefully when asked to apply a new law to past conduct or a pending case. For that reason,
Florida courts will examine the text and identify whether the Legislature expressed a clear intent
that the law be applied retroactively. If the statute is substantive and there is no clear intent
expressed by the Legislature, then the basic assumption that the Legislature was making law for
the future will apply. If the statute is substantive and there is a clear expression from the
Legislature that retroactive application was intended, then the court will examine whether the
Florida Constitution prohibits retroactive application.
If the statute is not substantive, and instead is either procedural remedial (or a
combination of both), then the constitutional reasons for caution in applying the new law to
pending cases does not apply. If it makes sense to apply the new statute to pending cases, the
court will do so.
C. The Facts
This case involves a motor vehicle accident that occurred on June 9, 2014, on northbound
1-275 in Tampa, Florida. When the accident occurred, Plaintiffs Sharon Sapp and Stacy Chaney
were passengers on a shuttle bus operated by Defendant James Brooks and owned by Defendant
JB Coachline.
At that time, Plaintiffs were covered by Medicare and/or Medicaid health insurance.
That insurance would have covered certain of Plaintiffs’ medical costs arising from the accident.
Rather than rely on Medicare and/or Medicaid, Plaintiffs executed various agreements to pay
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providers who did not bill insurance, subject to the outcome of this litigation (the “Letters of
Protection”). Defendants allege that third-party or factoring companies have since purchased
the right to receive payments under the letters of protection, including Cash 4 Crash, LLC,
Momentum Fundings, LLC, Certified Legal Funding, Inc., and Oasis Legal Finance, LLC.
D. The Act
The Statute took effect on March 24, 2023 when Governor DeSantis signed a tort reform
bill called HB 837. HB 837 was enacted as Chapter 2023-15, Florida Laws (the “Act’”). The
Act includes the Statute! in Section 6 and provides that, in pertinent part, the Statute will read as
follows.
(2) ADMISSIBLE EVIDENCE OF MEDICAL TREATMENT OR
SERVICE EXPENSES.—Evidence offered to prove the amount of
damages for past or future medical treatment or services in a
personal injury or wrongful death action is admissible as provided
in this subsection.
(a) Evidence offered to prove the amount of damages for past
medical treatment or services that have been satisfied is limited to
evidence of the amount actually paid, regardless of the source of
payment.
(b) Evidence offered to prove the amount necessary to satisfy
unpaid charges for incurred medical treatment or services shall
include, but is not limited to, evidence as provided in this
paragraph.
1. If the claimant has health care coverage other than Medicare or
Medicaid, evidence of the amount which such health care coverage
is obligated to pay the health care provider to satisfy the charges
for the claimant’s incurred medical treatment or services, plus the
| As of the rendition of this Order, section 768.0427, Fla. Stat. constitutes only prima facie evidence of the law. The
enrolled act, Chapter 2013-15, stands as the official and primary evidence of the law as enacted by the Legislature.
See generally, Shuman v. State, 358 So. 2d 1333, 1338 (1978) (discussing the status of legislation enacted by the
Legislature and reduced to statutory form by the statutory revision division, prior to adoption by the Legislature).
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claimant’s share of medical expenses under the insurance contract
or regulation.
2. If the claimant has health care coverage but obtains treatment
under a letter of protection or otherwise does not submit charges
for any health care provider’s medical treatment or services to
health care coverage, evidence of the amount the claimant’s health
care coverage would pay the health care provider to satisfy the past
unpaid medical charges under the insurance contract or regulation,
plus the claimant’s share of medical expenses under the insurance
contract or regulation, had the claimant obtained medical services
or treatment pursuant to the health care coverage.
3. If the claimant does not have health care coverage or has health
care coverage through Medicare or Medicaid, evidence of 120
percent of the Medicare reimbursement rate in effect on the date of
the claimant’s incurred medical treatment or services, or, if there is
no applicable Medicare rate for a service, 170 percent of the
applicable state Medicaid rate.
4. If the claimant obtains medical treatment or services under a
letter of protection and the health care provider subsequently
transfers the right to receive payment under the letter of protection
to a third party, evidence of the amount the third party paid or
agreed to pay the health care provider in exchange for the right to
receive payment pursuant to the letter of protection.
5. Any evidence of reasonable amounts billed to the claimant for
medically necessary treatment or medically necessary services
provided to the claimant.
(c) Evidence offered to prove the amount of damages for any
future medical treatment or services the claimant will receive shall
include, but is not limited to, evidence as provided in this
paragraph.
1. If the claimant has health care coverage other than Medicare or
Medicaid, or is eligible for any such health care coverage, evidence
of the amount for which the future charges of health care providers
could be satisfied if submitted to such health care coverage, plus
the claimant’s share of medical expenses under the insurance
contract or regulation.
2. If the claimant does not have health care coverage or has health
care coverage through Medicare or Medicaid, or is eligible for
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such health care coverage, evidence of 120 percent of the Medicare
reimbursement rate in effect at the time of trial for the medical
treatment or services the claimant will receive, or, if there is no
applicable Medicare rate for a_ service, 170 percent of the
applicable state Medicaid rate.
3. Any evidence of reasonable future amounts to be billed to the
claimant for medically necessary treatment or medically necessary
services.
The Act included a provision in Section 30 that “[e]xcept as otherwise expressly provided
in this act, this act shall apply to causes of action filed after the effective date of this act.” In
Section 31, the Act provides that “[t]his act shall take effect upon becoming law.”
E. The Relief Requested in the Motion
The ink had not dried on the Governor’s signature before this case presented the question
whether the Statute applies to pending cases like this one. The Motion seeks to:
(1) allow Plaintiffs to offer only evidence of the amount actually paid by any payer,
pursuant to section 768.0427(2), for past medical expenses already paid;
(2) allow Defendants to offer any evidence specifically permitted by section
768.0427(2)(b) regarding unpaid past medical expenses, including evidence of the
amount any third-party loan services were paid in return for the right to receive
payment under any letters of protection; and
(3) allow Defendants to offer any evidence specifically permitted by section
768.0427(2)(c) for future medical expenses.
F. The Present Posture of the Case
This order is rendered in May 2023, during the period that this case was scheduled to be
tried. At the same pre-trial hearing where the Motion was argued, other motions in limine were
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granted in rulings from the bench. Citing a need for additional discovery due to those rulings,
Plaintiffs moved for and were granted a continuance of the May 2023 trial.
IL. Analysis
Whether it comes about by a change in decisional law, a statute, or administrative
regulation, a question frequently arises over whether a new or amended law applies to certain
case. Nuances abound in the analysis of that question.
A. What Do the Words Mean?
1. Temporal Reach
“Temporal reach” is a term of art that refers to an analysis that governs to which period
of time (and therefore, to which cases) a new law applies.
2. Prospective, Retrospective, and Retroactive
The three words used to categorize temporal reach are prospective, retrospective, and
retroactive. They are bandied about enough that it is easy to overlook the importance of
understanding what they really mean. Defining the terms and appreciating the fact that the
meaning of them may change in the context of different types of proceedings is an important first
step.
a. Definitions
The word “prospective” means “foresighted, forward-looking” and “concerned with or
relating to the future: effective in the future.” Webster’s Third New Int’l Dictionary 1821
(2002). Black’s Law Dictionary defines a “prospective law” as “[o]ne applicable only to cases
which shall arise after its enactment.” Black’s Law Dictionary 1100 (5th ed. 1979).
The word “retroactive” means “operative, finding, and taking effect prior to enactment,
promulgation, or imposition.” Webster’s Third New Int’l Dictionary 1940. A “retroactive law”
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is defined as “those which take away or impair vested rights acquired under existing laws, create
new obligations, impose a new duty, or attach a new disability in respect to the transactions or
considerations already past.” Black’s Law Dictionary 1184; see also Webster’s Third New Int’]
Dictionary 1940 (defining “retroactive law” as “a law that operates to make criminal or
punishable or in any way expressly affects an act done prior to the passing of the law.”).
The word “retrospective” means “contemplative of or relative to past events” or
“affecting things past.” Webster’s Third New Int’l Dictionary 1941. A “retrospective law” is
one
which looks backward or contemplates the past; one which is made to affect acts
or facts occurring, or rights accruing, before it came into force. Every statute
which takes away or impairs vested rights acquired under existing laws, or creates
a new obligation, imposes a new duty, or attaches a new disability in respect to
transactions or considerations already past. One that relates back to a previous
transaction and gives it a different legal effect from that which it had under the
law when it occurred.
Black’s Law Dictionary 1184.
b. Meaning in Context
Even once the definitions are understood, it is important to appreciate that meaning of the
words prospective, retroactive, and retrospective will vary based on whether they are discussed
in the context of statutory law or decisional law.
1 Statutory Law
“As a general, almost invariable rule, a legislature makes law for the future, not the past.”
A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 261 (2012); see also
Thomas M. Cooley, A_Treatise_on the Constitutional Limitations Which Rest_upon_the
Legislative Power of the States of the American Union, 62-63 (1868) (words in a statute should
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operate prospectively only “unless the words employed show a clear intention that it should have
a retrospective effect.”).
While in general, the Legislature makes law for the future, so long as it meets a
constitutional test, the Legislature can also make law retroactive. A statute is considered
“retroactive” if “it would impair rights a party possessed when he acted, increase a party’s
liability of past conduct, or impose new duties with respect to transactions already completed.”
Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1997). Retroactive legislation is often enacted
in an effort to “readjust[] rights and burdens imposed in the past” o1 ‘impose a new duty or
liability based on past acts.” Pension Ben. Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 729-
30 (1984). So long as it does not “offend due process” because it is “particularly ‘harsh and
oppressive, a9 retroactive legislation is lawful. Id. at 733.
As an example of explicitly retroactive legislation, in 1980 an ERISA bill was enacted
with an effective date five months before it was signed into law. Id. The purpose of the
retroactive effective date was to prevent “opportunistic employers” from withdrawing from plans
while Congress was considering the legislation. Id. at 723-24.
While not explicitly retroactive, federal legislation meant to compensate disabled coal
miners was considered to have retroactive effect when it required employers to compensate
former employees who left their work in the industry before the act was passed. Usery v. Turne!
Elkhorn Mining Co., 428 U.S. 1, 14-15 (1976) (“To be sure, insofar as the Act requires
compensation for disabilities bred during employment terminated before the date of enactment,
the Act has some retrospective effect . . And it may be that the liability imposed by the Act for
disabilities suffered by former employees was not anticipated at the time of actual employment.
But our cases are clear that legislation readjusting rights and burdens is not unlawful solely
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because it upsets otherwise settled expectations. This is true even though the effect of the
legislation is to impose a new duty or liability on past acts.”).
ii. Decisional Law
In the context of a decisional change in the law, there is a spectrum of prospective
application. In Linkletter v. Walker, the United States Supreme Court acknowledged that even
within the terminology of “prospective” rulings in court cases, there is a range of meaning. 381
U.S. 618, 621-22 (1965) (recognizing that a “purely prospective” decision “does not apply even
to the parties before the court.”). A purely prospective application is one so future-looking that it
will not even apply to the case before the court. Id. The more common use of the term
prospective in decisional law, though, means that the decision will apply to the case before the
court and will also apply to future cases.
In Florida, the terms “retrospective” and “retroactive” are generally used interchangeably.
Love v. State, 286 So. 3d 177, 187 n.5 (Fla. 2019). No clear distinction seems to be drawn
between those terms in the federal analysis, either.
But a “retrospective” “retroactive” application of decisional law will often involve
disturbing a settled outcome. For example, in Linkletter, the Supreme Court considered whether
its prior decision in Mapp v. Ohio operated retrospectively upon cases finally decided in the
period prior to Mapp. Id. Mapp held that exclusion of evidence seized in violation of the search
and seizure provisions of the Fourth Amendment was required of the States by the Due Process
Clause of the Fourteenth Amendment. Id. at 619. Victor Linkletter was convicted of simple
burglary in 1959. Id. at 621. At the time of his arrest, officers took his keys and used them to
enter his home and business, where various items were seized without a warrant. Id. Linkletter
lost his various appeals, and the Supreme Court of Louisiana affirmed his conviction in February
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of 1960. Id. Months later, Mapp was announced and Linkletter filed an application for habeas
corpus, which was denied, and then sought the same relief in federal court, where it, too, was
denied by the trial court. Id. On appeal, the federal appellate court found that the searches were
too remote from Linkletter’s arrest to be constitutional but Mapp was not retrospective; as a
result, the trial court’s denial of habeas corpus was affirmed. Id. In making that determination,
the Supreme Court noted that retrospective application of Mapp would result in “the wholesale
release” of previously convicted defendants. Id. at 637.
3. Substantive, Procedural, and Remedial
A matter is considered substantive if it “defines, creates, or regulates rights—‘those
existing for their own sake and constituting the normal legal order of society, i.e., the rights of
life, liberty, property, and reputation’.” DeLisle v. Crane Co., 258 So. 3d 1219, 1224 (Fla. 2018)
(citing Allen v. Butterworth, 756 So. 2d 52, 59 (Fla. 2000)).
A matter is considered procedural if it relates to “the form, manner, or means by which
substantive law is implemented.” Id. (citing In re Fla. Rules of Criminal Procedure, 272 So. 2d
65, 65 (Fla. 1972)); see_also Kenz v. Miami-Dade Cnty., 116 So. 3d 461, 466 (Fla. 3d DCA
2013) (change in section 768.0755, which required plaintiff to produce evidence of defendant’s
actual or constructive knowledge, was procedural and not substantive); Litvin v. St. Lucie Cnty.
Sheriff's Dep’t, 599 So. 2d 1353, 1355 (Fla. 1S" DCA 1992) (statutory amendment that imposed
“actual knowledge” threshold in a workers’ compensation claim was procedural); Stuart L.
Stein, P.A. v. Miller Indus., Inc., 564 So. 2d 539, 540 (Fla. 4 DCA 1990) (“increasing the
burden of proof to a ‘clear and convincing’ standard did not amount to a substantive change in
the statutory scheme” and may be applied retroactively); Larocca v. State, 289 So. 3d 492, 493
(Fla. 4" DCA 2020) (“We apply Daubert to the facts of this case because the amendment
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implementing Daubert is procedural and so the change applies retroactively.”). “Stated
differently, procedural law ‘includes all rules governing the parties, their counsel and the Court
throughout the progress of the case from the time of its initiation until final judgment and its
execution.” Id. at 1225 (citing Allen, 756 So. 2d at 60); see also id. (citing Haven Federal
Savings & Loan Ass’n vy. Kirian, 579 So. 2d 730, 732 (Fla. 1991)) (“It is the method of
conducting litigation involving rights and corresponding defenses.”); Bionetics Corp. v.
Kenniasty, 69 So. 3d 943, 948 (Fla. 2011) (quoting Massey v. David, 979 So. 2d 931, 936-37
(Fla. 2008)) (‘‘Practice and procedure’ may be described as the machinery of the judicial process
as opposed to the product thereof. It is the method of conducting litigation involving rights and
corresponding defenses.”) (internal quotations omitted). A new procedural statute is “generally
held applicable to all pending cases,” Young v. Altenhaus, 472 So. 2d 1152, 1154 (Fla. 1985), in
part because “no one has a vested interest in any given mode of procedure.” State v. Kelly, 588
So. 2d 595, 597 (Fla. 1 DCA 1991).
It possible for a statute to have qualities that are a blend of more than one of the
substantive, remedial, or procedural categories. Bionetics Corp., 69 So. 3d at 948 (“The
distinction between substantive and procedural law, however, is not always clear.”) And when
this is so”, the court must identify what aspect dominates. Id. (citing State v. Raymond, 906 So.
2d 1045, 1049 (Fla. 2005)) (“[W]hen procedural aspects overwhelm substantive ones, the law
may no longer be considered substantive.”).
B. Florida Has Its Own Analytical Framework, Distinct From the Federal One
Although Florida courts have begun to trend toward the federal courts in many respects,
Florida utilizes an analytical framework of temporal reach that is not identical to the federal
? And dispositive.
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analysis. At times, Florida decisions cite to the federal precedents without (a) necessarily
adopting them wholesale or (b) flagging the differences between the overall approaches. The
analysis was already nuanced to begin with for the reasons identified supra; the undistinguished
differences between the federal and Florida standards could be a reason why this area continues
to be challenging in the Florida system. See, e.g., Federal Express Corp. v. Sabbah, 357 So. 3d
1283 (Fla. 3d DCA 2023) (Gordo, J., concurring in result only) (“express[ing] concern” that
“predictability in application of newly amended rules and statutes remains elusive—if not
imprecise under our current precedent.”).
1. The Federal Analysis
Many of the federal cases analyze the issue of temporal reach of a new law in the context
of an appellate case. That is yet another nuance that must be teased out. In the case at bar, we are
analyzing a new statute that applies to a case that has not yet been tried and in which no final
judgment has been entered. This is unlike the question discussed in many of the federal cases,
which ask whether to apply a new law passed during an appellate proceeding, after the entry of a
final judgment below. With that distinction identified, a cursory review of the cases is still
helpful.
In the context of an appeal, the general rule is that a court “is to apply the law in effect at
the time it renders its decision, unless doing so would result in manifest injustice or there is
statutory direction or legislative history to the contrary.” Bradley v. School Bd. of Richmond,
416 U.S. 696, 711 (1974); Thorpe v. Housing Auth. of City of Durham, 393 U.S. 268, 281
(1969) (“The general rule, however, is that that an appellate court must apply the law in effect at
the time it renders its decision.”). “The same reasoning has been applied where the change was
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constitutional, statutory, or judicial.” Thorpe v. Housing Auth. of City of Durham, 393 U.S. 268,
282 (1969).
Bradley involved an award of attorneys’ fees in a protracted school desegregation case.
The suit was initiated as a class action in 1961, and in 1964 the trial court approved a “freedom
of choice” plan and awarded nominal attorneys’ fees of $75. Id. at 701. The plan was affirmed,
the appellate court found no error in the nominal fee award, but the Supreme Court vacated the
plan and remanded the case. Id. On remand, the trial court approved a revised “freedom of
choice” plan that was agreed to by the petitioners. Id. That revised plan was in operation for
about four years. Id. In 1968, while the plan was in effect, in a different case called Green v.
County School Board of New Kent County, the Supreme Court held that the type of plan
established in Bradley could not stand. Id. In 1970, the Bradley petitioners then moved for relief
in the trial court in light of Green. Id. In addition to seeking a new plan, the petitioners also
sought an award of reasonable attorneys’ fees. Id. The trial court awarded counsel over $43,000
in fees between the date of the 1970 motion for fees and the date of the order, noting the absence
of any explicit statutory authorization for fees in school desegregation cases but rooting its
decision in its general equity power. Id. at 706. While the case was again before the appellate
court and prior to its decision, Congress passed the Education Amendments of 1972, which
granted federal courts the authority to award reasonable attorneys’ fees in school desegregation
cases. Id. at 709. The appellate court determined that the new law did not sustain the allowance
of fees because there were no orders pending or appealable when the trial court initially made its
fee award or when the new statute became effective. Id. at 710.
The Supreme Court began its analysis by “anchor[ing] [its] holding on the principle that a
court is to apply the law in effect at the time it renders its decision, unless doing so would result
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in manifest injustice or there is statutory direction or legislative history to the contrary.” Id. at
711. It then considered concerns raised in prior cases about the application of an intervening
change in the law to a pending action, which it found countered on (a) the nature and identity of
the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law
upon those rights. Id. at 719-20. Finding that the nature and identity of the parties and the rights
involved weighed in favor of application of the new law to the pending case, the court turned to
the nature of the impact of the change in the law on those rights. Id. at 720-21. Concluding that
the intervening change in the law did not alter the impact of the law on the parties’ rights, the
Court found (1) that the new statute did not create any new substantive obligation on the school
board and (2) there was no indication that the Board would have changed its conduct so as to
render the litigation unnecessary, if it could have foreseen the change in the law. Id. at 720-21.
Citing Goldstein v. California, 412 U.S 546, 551-52 (1983) as an example, the Bradley
Court acknowledged that the Legislature can expressly provide that a law has only prospective
effect, and when it does so the courts follow that lead. Id. at 715 n.21. In Goldstein, the Court
considered federal copyright statutes that were amended by Congress while a case was pending
in state courts. Goldstein, 412 U.S at 552. The Court rejected application of the amendment
because the statute specifically provided that it was “to be available only to sound recordings
‘fixed, published, and copyrighted’ on and after February 15, 1972, and before January 1, 1975,
and that nothing in Title 17, as amended is to ‘be applied retroactively or (to) be construed as
affecting in any way any rights with respect to sound recordings fixed before’ February 15,
1972.” Id. at 552.
After Bradley, the Supreme Court decided Landgraf v. USI Film Products, which
established a two-step analysis for considering the temporal reach of a new statute. 511 U.S. 244
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(1994). Then, in Lindh v. Murphy, 521 U.S. 320 (1997), the court added an additional step.
Shortly after Lindh was decided, the Third Circuit summarized the Landgraf / Lindh framework
in Matthews v. Kidder, Peabody & Co.., Inc. as follows:
First, we must look for an “unambiguous directive” from Congress
as to the temporal reach of a statute. If one is found, we must
follow it and our inquiry is done.
In the absence of a clear statement from Congress, we must use
normal statutory construction rules to determine if Congress
manifested an intent to only apply a statute to future cases. Again,
if we find an intent to not apply a statute retrospectively, our
inquiry is done.
If neither an express command in either direction nor an intent to
apply a statute prospectively is found, we look at the effect that the
statute will have. Does it have “retrospective effect,” i.e., does it
“impair rights a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with respect to
transactions already completed?” Or, conversely, does the statute
affect only prospective relief, or change procedural rules, or simply
allocate jurisdiction among fora?
If the statute does not have retroactive effect, we apply the usual
statutory construction rules to determine whether it should be
applied to pending cases.
However, if the statute does have retroactive effect, we employ the
strong presumption against applying a statute with retroactive
effect to pending cases: At this point, only Congress’s clear intent
to apply the statute retrospectively will overcome the presumption.
161 F.3d 156, 161 (3d Cir. 1998) (Becker, C.J.) (internal citations and emphasis omitted).
Notably, the first step in the federal approach is to look for an “unambiguous directive” in
the enactment. It is only after doing that that the federal courts consider the character of the new
law. The case at bar highlights this as a material distinction in the analysis.
2. The Florida Approach
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In Florida, the test is different. How the test has been articulated has, at times, created
some uncertainty.
In Arrow Air, Inc. v. Walsh, the Supreme Court considered whether the private sector
Whistle-Blower’s Act, which became effective on June 7, 1991, could be applied retroactively to
impose liability for an employee termination that occurred before the effective date. 645 So. 2d
422, 423 (Fla. 1994). Walsh, the terminated employee, alleged that he was fired on May 15,
1989, in retaliation for reporting safety violations and delaying a flight. Id. The trial court
granted a motion to dismiss for failure to state a claim on the basis that Florida recognized no
cause of action for retaliatory discharge at the time. Id. Walsh appealed and the Third District
affirmed, but while it considered a motion for rehearing the private sector Whistle-Blower’s Act
took effect. Id. at 423-24. After asking for supplemental briefing, the Third District vacated its
decision, reversed the dismissal of Walsh’s complaint, and held that because the act was
remedial it should be applied to Walsh’s pending case on remand. Id. at 424.
On review of the Third District’s ruling, the Supreme Court acknowledged that there is
no presumption in favor of prospective application for remedial statutes; however, it held that the
Whistle-Blower’s Act was not properly characterized as remedial because it created a new cause
of action. Id. In the absence of an express statement of legislative intent, the court underscored
as a “well-established rule of statutory construction” that there is a “presumption against
retroactive application of a law that affects substantive rights, liabilities, or duties.” Id. at 425. It
also underscored that the presumption against retroactivity cannot be overcome by the “mere fact
that ‘retroactive application of a new statute would vindicate its purpose more fully.” Id.
In State Farm Mutual Auto Insurance Company v. Laforet, the Supreme Court held that
the Legislature does not have the last word on characterization of a statute as procedural or
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remedial. 658 So. 2d 55, 59 (Fla. 1995). More importantly, it held that courts may override even
a clear expression of intent about temporal reach if it would violate constitutional protections to
give effect to that intent. Id. In that case, the Court considered whether newly created section
627.727(10), Florida Statutes, was a remedial statute that should be applied retroactively. Id.
The enacting legislation provided that:
[t]he purpose of subsection (10) of section 627.727, Florida Statutes, relating to
damages, is to reaffirm existing legislative intent, and as such is remedial rather
than substantive. This section and section 627.727(10), Florida Statutes shall take
effect upon this act becoming a law and, as it serves only to reaffirm the original
legislative intent, section 627.727(10), Florida Statutes, shall apply to all causes
of action accruing after the effective date of section 624.155, Florida Statutes.
Id.at 60 (quoting Ch. 92-318, § 80, Laws of Fla.). Because section 624.155 was originally
enacted in 1982 and the amendment passed in 1992, the implementing language was interpreted
as a clear intent to apply the statute retroactively. Id. at 61.
Though the “general rule [is] that a substantive statute will not operate retrospectively
absent clear legislative intent to the contrary, [and a] procedural or remedial statute is to operate
retrospectively,” and despite its recognition that the Legislature labeled the statute as remedial
and clearly intended to apply the statute retroactively, the Court nevertheless held that the statute
could not be applied retroactively. Id. In reaching that conclusion, it opined that the statute was,
“in substance, a penalty” and “[jJust because the Legislature labels something as being remedial”
that “does not make it so.” Id.
In Smiley v. State, the Supreme Court underscored the importance of constitutional
concerns when analyzing temporal reach. 966 So. 2d 330 (2007). It determined that section
776.013, Florida Statutes (2005) did not apply to cases pending at the time the statute became
effective. Id. at 332. Section 776.013 expanded the right of self-defense by specifically creating
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“no duty to retreat” in certain situations where deadly force can be used immediately without the
need to first retreat. Id. at 334. The bill provided that “[t]his act shall take effect October 1,
2005” and the statute carried an effective date of October 1, 2005. 2005 Fla. Sess. Law. Serv.
Ch. 2005-27; Fla. Stat. § 776.013.
The defendant, Smiley, was charged with murder in the first degree following a shooting
on November 6, 2004. Smiley, 996 So. 2d at 332. Smiley claimed self-defense. Id. The trial
court granted Smiley’s request for certain jury instructions based on the new statute, and the
State sought review through an emergency petition for writ of certiorari to the Fourth District.
Id. at 332. The Fourth District held that section 776.013, Florida Statute, does not apply to
conduct committed prior to the October 1, 2005 effective date and for that reason, Smiley was
not entitled to the jury instructions he requested. Id. It further concluded that because the statute
was a substantive amendment to Section 775.01, Florida Statutes, it would violate article X,
section 9 of the Florida Constitution if it were given retroactive application. Id. at 333.
Moreover, it found that section 776.013 “was not remedial, which would permit retroactive
application” because it created a new right to self-defense with no duty to retreat. Id.
The Smiley court acknowledged the distinction between changes in statutory law as
opposed to decisional law. Id. Recognizing that its precedent in Witt v. State, 387 So. 2d 922
(Fla. 1980) did not apply because Witt only determines when a change in decisional law applies
retroactively, the court explained that “a different analysis must be applied to determine the
question of whether a change in the statutory law, such as section 776.013, should receive
retroactive application.” Id. at 334.
Next, Smiley provided that “[i]n the analysis of a change in statutory law, a key
determination is whether the statute constitutes a procedural/remedial change or a substantive
19 of 40
change in the law. ” Id. Because remedial statutes or statutes relating to modes of procedure?
“do not create new or take away vested rights” and “only operate in furtherance of the remedy or
confirmation of rights already existing” they “do not come within the legal conception of a
retrospective law, or the general rule against retrospective operation of statutes.” Id. (citing City
of Lakeland v. Catinella, 129 So. 2d 133, 136 (Fla. 1961)). In the case of a remedial statute,
there is no presumption in favor of prospective application and “whenever possible, such
legislation should be applied to pending cases in order to fully effectuate the legislation’s
intended purpose.” Id. Finding that section 776.013 significantly changed the affirmative
defense available, the Smiley court concluded that the change in the law was substantive. Id.at
336.
Because section 776.013 was substantive, a presumption of prospective application arose
and led to two interrelated inquiries: (1) was there clear evidence of legislative intent to apply the
statute retroactively; and (2) if the legislation clearly expresses an intent that it apply
retroactively, whether retroactive application constitutionally permissible. Id. at 336. Because
article X, section 9 provides that “[rJepeal or amendment of a criminal statute shall not affect
prosecution or punishment for any crime previously committed” the Smiley court determined
3 In Cantinella, the Court equated “procedural” and “remedial” statutes, at least for analytical purposes:
Remedial statutes or statutes relating to remedies or modes of procedure, which do not create new
or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights
already existing, do not come within the legal conception of a retrospective law, or a general rule
against retrospective operation of statutes.
129 So. 2d at 136. Cantinella involved a controversy between multiple workman’s compensation carriers over
which was responsible for a claimant’s injuries. Id. at 134. A newly amended statute, which took effect after the
claimant’s injuries were suffered but before the controversy between carriers arose, was construed to be procedural
and applied to the pending case. Id. at 136-37. The text of the enacting legislation was not an issue in Cantinella.
20 of 40
that it was not necessary to address whether there was legislative intent to apply the statute
retroactively, because it would be “constitutionally impermissible” to do so. Id. 336-37.
In Old Port Holdings, Inc. v. Old Port Cove Condominium Association One, Inc., the
Supreme Court considered whether a right of first refusal was invalid under the rule against
perpetuities. 986 So. 2d 1279 (2008). Without addressing the substantive/procedural
distinction’, the court held that because the statute did not evidence an intent that it apply
retroactively the statute, it did not operate retroactively. Id. 1284.
In Massey v. David, the Supreme Court considered the constitutionality of a statute
limiting recovery of expert witness fees. 979 So. 2d 931 (Fla. 2008). It recognized its past
precedent on whether a matter is substantive or procedural:
Substantive law has been defined as that part of the law which creates, defines,
and regulates rights, or that part of the law which courts are established to
administer. It includes those rules and principles which fix and declare the
primary rights of individuals with respect towards their person and property. On
the other hand, practice and procedure “encompass the course, form, manner,
means, method, mode, order, process or steps by which a party enforces
substantive rights or obtains redress for their invasion. ‘Practice and procedure’
may be described as the machinery of the judicial process as opposed to the
product thereof.” It is the method of conducting litigation involving rights and
Preview
Filing # 173681882 E-Filed 05/22/2023 01:42:32 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION ROSABELLE BRACKE, Plaintiff, Vv. CASE NO. 20000311CA JOHN CALLAHAN, Defendant. / DEFENDANT’S NOTICE OF FILING SUPPLEMENTAL AUTHORITY COMES NOW, Defendant, JOHN CALLAHAN, by and through his undersigned counsel, and hereby gives notice of filing the following case law in support of his Motion in Limine pursuant to F.S. § 768.0427 (filed April 14, 2023 and set to be heard May 25, 2023): 1 Amended Order Granting Defendant’s Motion in Limine in Stapp, Chaney, et al., y. James Brooks and J.B. Coachline, Inc., in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, Case No. 17-CA-5664E, dated May 19, 2023 attached hereto as Exhibit A. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing with the Clerk of the Court using the E-Filing Portal System which will send a notice of electronic filing to the following: James E. Moon, Esq.to jmoon@forthepeople.com and angeliaharrison@forthepeople.com on May 22, 2023. BOY AGNEW POTANOVIC MILLER Attorneys for Defendant 4415 Metro Parkway, Suite 110 Ft. Myers, Florida 33916 Telephone: 239.208.6500 Facsimile: 239.208.6511 Primary E-Mail: JohnM@bapfirm.com Secondary E-Mail: service@bapfirm.com By:_/s/ John M .Miller John M. Miller Florida Bar No. 61488 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA GENERAL CIVIL DIVISION SHARON M. SAPP; STACY M. CHANEY; etal., Plaintiffs, CASE NO.: 17-CA-5664 DIVISION: E v JAMES BROOKS; J.B. COACHLINE, INC., Defendants. / AMENDED ORDER GRANTING DEFENDANTS’ MOTION IN LIMINE THIS CAUSE came before the Court at a hearing on Defendants’ Motions in Limine Regarding Evidence of Past and Future Medical Treatment or Services Expenses (the “Motion”). The hearing occurred on April 21, 2023 and April 24, 2023. David Henry, Esq. and Christopher Borzell, Esq. of Morgan & Morgan represented Plaintiffs Sharon M. Sapp and Stacy M. Chaney. Heather Stover, Esq. and Susan Wilson, Esq. of Ogden & Sullivan represented Defendants James Brooks and J.B. Coachline, Inc. I Introduction A. The Question Presented The Motion presents a question about the temporal reach of recently-enacted section 768.0427, Florida Statutes (the “Statute”). At the time of the April 2023 hearing on the Motion, both sides agreed that no trial court in Florida has ruled on the applicability of the Statute to pending cases. Temporal reach of a new statute is an area covered with some frequency in Florida Supreme Court jurisprudence. So much so that, with the limited time trial courts have available 1 of 40 EXHIBIT A to consider issues like this, it can be challenging to reach an unshakeable conviction that no controlling case could have been overlooked. But no one has produced a case that squarely addresses and disposes of the question raised in the Motion. The question is this: if a new statute is (1) procedural in nature, (2) and the Legislature has provided direction on temporal reach, (3) does the judicial branch follow its precedent on temporal reach of procedural statutes or (4) does it defer to the Legislature’s direction? B. The Arguments Plaintiffs have the easier argument to digest. So easy that, at first blush, it seems that extensive discussion is unwarranted. Plaintiffs argue that the Statute itself is substantive. The temporal reach of substantive statutes is not a difficult part of the law to understand. When a statute is substantive in nature, there are two questions to ask. First, was there clear evidence of legislative intent to apply it retroactively? If the answer is yes, then the second question is this: is retroactive application constitutionally permissible? The Statute has an effective date of March 24, 2023. And the enacting legislation says “{e]xcept as otherwise expressly provided in this act, this act shall apply to causes of action filed after the effective date of this act.” The precedent on retroactivity favors Plaintiffs on this being “game over.” But Defendants contend that the statute is not substantive. And the analysis is different with procedural statutes. The judicial branch has shown the Legislature an answer key how it interprets the temporal reach of statutes. The Legislature legislates against that background. The answer key is this: There is a core assumption that the Legislature makes law for the future. 2 of 40 If a case comes before the court in which one side asks that a new law apply to past conduct or a pending case, then the court will first consider whether the new law is substantive or something else (the “something else” is procedural, remedial, or some combination of the two). If it is substantive, there are constitutional reasons why the judicial branch must tread carefully when asked to apply a new law to past conduct or a pending case. For that reason, Florida courts will examine the text and identify whether the Legislature expressed a clear intent that the law be applied retroactively. If the statute is substantive and there is no clear intent expressed by the Legislature, then the basic assumption that the Legislature was making law for the future will apply. If the statute is substantive and there is a clear expression from the Legislature that retroactive application was intended, then the court will examine whether the Florida Constitution prohibits retroactive application. If the statute is not substantive, and instead is either procedural remedial (or a combination of both), then the constitutional reasons for caution in applying the new law to pending cases does not apply. If it makes sense to apply the new statute to pending cases, the court will do so. C. The Facts This case involves a motor vehicle accident that occurred on June 9, 2014, on northbound 1-275 in Tampa, Florida. When the accident occurred, Plaintiffs Sharon Sapp and Stacy Chaney were passengers on a shuttle bus operated by Defendant James Brooks and owned by Defendant JB Coachline. At that time, Plaintiffs were covered by Medicare and/or Medicaid health insurance. That insurance would have covered certain of Plaintiffs’ medical costs arising from the accident. Rather than rely on Medicare and/or Medicaid, Plaintiffs executed various agreements to pay 3 of 40 providers who did not bill insurance, subject to the outcome of this litigation (the “Letters of Protection”). Defendants allege that third-party or factoring companies have since purchased the right to receive payments under the letters of protection, including Cash 4 Crash, LLC, Momentum Fundings, LLC, Certified Legal Funding, Inc., and Oasis Legal Finance, LLC. D. The Act The Statute took effect on March 24, 2023 when Governor DeSantis signed a tort reform bill called HB 837. HB 837 was enacted as Chapter 2023-15, Florida Laws (the “Act’”). The Act includes the Statute! in Section 6 and provides that, in pertinent part, the Statute will read as follows. (2) ADMISSIBLE EVIDENCE OF MEDICAL TREATMENT OR SERVICE EXPENSES.—Evidence offered to prove the amount of damages for past or future medical treatment or services in a personal injury or wrongful death action is admissible as provided in this subsection. (a) Evidence offered to prove the amount of damages for past medical treatment or services that have been satisfied is limited to evidence of the amount actually paid, regardless of the source of payment. (b) Evidence offered to prove the amount necessary to satisfy unpaid charges for incurred medical treatment or services shall include, but is not limited to, evidence as provided in this paragraph. 1. If the claimant has health care coverage other than Medicare or Medicaid, evidence of the amount which such health care coverage is obligated to pay the health care provider to satisfy the charges for the claimant’s incurred medical treatment or services, plus the | As of the rendition of this Order, section 768.0427, Fla. Stat. constitutes only prima facie evidence of the law. The enrolled act, Chapter 2013-15, stands as the official and primary evidence of the law as enacted by the Legislature. See generally, Shuman v. State, 358 So. 2d 1333, 1338 (1978) (discussing the status of legislation enacted by the Legislature and reduced to statutory form by the statutory revision division, prior to adoption by the Legislature). 4 of 40 claimant’s share of medical expenses under the insurance contract or regulation. 2. If the claimant has health care coverage but obtains treatment under a letter of protection or otherwise does not submit charges for any health care provider’s medical treatment or services to health care coverage, evidence of the amount the claimant’s health care coverage would pay the health care provider to satisfy the past unpaid medical charges under the insurance contract or regulation, plus the claimant’s share of medical expenses under the insurance contract or regulation, had the claimant obtained medical services or treatment pursuant to the health care coverage. 3. If the claimant does not have health care coverage or has health care coverage through Medicare or Medicaid, evidence of 120 percent of the Medicare reimbursement rate in effect on the date of the claimant’s incurred medical treatment or services, or, if there is no applicable Medicare rate for a service, 170 percent of the applicable state Medicaid rate. 4. If the claimant obtains medical treatment or services under a letter of protection and the health care provider subsequently transfers the right to receive payment under the letter of protection to a third party, evidence of the amount the third party paid or agreed to pay the health care provider in exchange for the right to receive payment pursuant to the letter of protection. 5. Any evidence of reasonable amounts billed to the claimant for medically necessary treatment or medically necessary services provided to the claimant. (c) Evidence offered to prove the amount of damages for any future medical treatment or services the claimant will receive shall include, but is not limited to, evidence as provided in this paragraph. 1. If the claimant has health care coverage other than Medicare or Medicaid, or is eligible for any such health care coverage, evidence of the amount for which the future charges of health care providers could be satisfied if submitted to such health care coverage, plus the claimant’s share of medical expenses under the insurance contract or regulation. 2. If the claimant does not have health care coverage or has health care coverage through Medicare or Medicaid, or is eligible for 5 of 40 such health care coverage, evidence of 120 percent of the Medicare reimbursement rate in effect at the time of trial for the medical treatment or services the claimant will receive, or, if there is no applicable Medicare rate for a_ service, 170 percent of the applicable state Medicaid rate. 3. Any evidence of reasonable future amounts to be billed to the claimant for medically necessary treatment or medically necessary services. The Act included a provision in Section 30 that “[e]xcept as otherwise expressly provided in this act, this act shall apply to causes of action filed after the effective date of this act.” In Section 31, the Act provides that “[t]his act shall take effect upon becoming law.” E. The Relief Requested in the Motion The ink had not dried on the Governor’s signature before this case presented the question whether the Statute applies to pending cases like this one. The Motion seeks to: (1) allow Plaintiffs to offer only evidence of the amount actually paid by any payer, pursuant to section 768.0427(2), for past medical expenses already paid; (2) allow Defendants to offer any evidence specifically permitted by section 768.0427(2)(b) regarding unpaid past medical expenses, including evidence of the amount any third-party loan services were paid in return for the right to receive payment under any letters of protection; and (3) allow Defendants to offer any evidence specifically permitted by section 768.0427(2)(c) for future medical expenses. F. The Present Posture of the Case This order is rendered in May 2023, during the period that this case was scheduled to be tried. At the same pre-trial hearing where the Motion was argued, other motions in limine were 6 of 40 granted in rulings from the bench. Citing a need for additional discovery due to those rulings, Plaintiffs moved for and were granted a continuance of the May 2023 trial. IL. Analysis Whether it comes about by a change in decisional law, a statute, or administrative regulation, a question frequently arises over whether a new or amended law applies to certain case. Nuances abound in the analysis of that question. A. What Do the Words Mean? 1. Temporal Reach “Temporal reach” is a term of art that refers to an analysis that governs to which period of time (and therefore, to which cases) a new law applies. 2. Prospective, Retrospective, and Retroactive The three words used to categorize temporal reach are prospective, retrospective, and retroactive. They are bandied about enough that it is easy to overlook the importance of understanding what they really mean. Defining the terms and appreciating the fact that the meaning of them may change in the context of different types of proceedings is an important first step. a. Definitions The word “prospective” means “foresighted, forward-looking” and “concerned with or relating to the future: effective in the future.” Webster’s Third New Int’l Dictionary 1821 (2002). Black’s Law Dictionary defines a “prospective law” as “[o]ne applicable only to cases which shall arise after its enactment.” Black’s Law Dictionary 1100 (5th ed. 1979). The word “retroactive” means “operative, finding, and taking effect prior to enactment, promulgation, or imposition.” Webster’s Third New Int’l Dictionary 1940. A “retroactive law” 7 of 40 is defined as “those which take away or impair vested rights acquired under existing laws, create new obligations, impose a new duty, or attach a new disability in respect to the transactions or considerations already past.” Black’s Law Dictionary 1184; see also Webster’s Third New Int’] Dictionary 1940 (defining “retroactive law” as “a law that operates to make criminal or punishable or in any way expressly affects an act done prior to the passing of the law.”). The word “retrospective” means “contemplative of or relative to past events” or “affecting things past.” Webster’s Third New Int’l Dictionary 1941. A “retrospective law” is one which looks backward or contemplates the past; one which is made to affect acts or facts occurring, or rights accruing, before it came into force. Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. One that relates back to a previous transaction and gives it a different legal effect from that which it had under the law when it occurred. Black’s Law Dictionary 1184. b. Meaning in Context Even once the definitions are understood, it is important to appreciate that meaning of the words prospective, retroactive, and retrospective will vary based on whether they are discussed in the context of statutory law or decisional law. 1 Statutory Law “As a general, almost invariable rule, a legislature makes law for the future, not the past.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 261 (2012); see also Thomas M. Cooley, A_Treatise_on the Constitutional Limitations Which Rest_upon_the Legislative Power of the States of the American Union, 62-63 (1868) (words in a statute should 8 of 40 operate prospectively only “unless the words employed show a clear intention that it should have a retrospective effect.”). While in general, the Legislature makes law for the future, so long as it meets a constitutional test, the Legislature can also make law retroactive. A statute is considered “retroactive” if “it would impair rights a party possessed when he acted, increase a party’s liability of past conduct, or impose new duties with respect to transactions already completed.” Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1997). Retroactive legislation is often enacted in an effort to “readjust[] rights and burdens imposed in the past” o1 ‘impose a new duty or liability based on past acts.” Pension Ben. Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 729- 30 (1984). So long as it does not “offend due process” because it is “particularly ‘harsh and oppressive, a9 retroactive legislation is lawful. Id. at 733. As an example of explicitly retroactive legislation, in 1980 an ERISA bill was enacted with an effective date five months before it was signed into law. Id. The purpose of the retroactive effective date was to prevent “opportunistic employers” from withdrawing from plans while Congress was considering the legislation. Id. at 723-24. While not explicitly retroactive, federal legislation meant to compensate disabled coal miners was considered to have retroactive effect when it required employers to compensate former employees who left their work in the industry before the act was passed. Usery v. Turne! Elkhorn Mining Co., 428 U.S. 1, 14-15 (1976) (“To be sure, insofar as the Act requires compensation for disabilities bred during employment terminated before the date of enactment, the Act has some retrospective effect . . And it may be that the liability imposed by the Act for disabilities suffered by former employees was not anticipated at the time of actual employment. But our cases are clear that legislation readjusting rights and burdens is not unlawful solely 9 of 40 because it upsets otherwise settled expectations. This is true even though the effect of the legislation is to impose a new duty or liability on past acts.”). ii. Decisional Law In the context of a decisional change in the law, there is a spectrum of prospective application. In Linkletter v. Walker, the United States Supreme Court acknowledged that even within the terminology of “prospective” rulings in court cases, there is a range of meaning. 381 U.S. 618, 621-22 (1965) (recognizing that a “purely prospective” decision “does not apply even to the parties before the court.”). A purely prospective application is one so future-looking that it will not even apply to the case before the court. Id. The more common use of the term prospective in decisional law, though, means that the decision will apply to the case before the court and will also apply to future cases. In Florida, the terms “retrospective” and “retroactive” are generally used interchangeably. Love v. State, 286 So. 3d 177, 187 n.5 (Fla. 2019). No clear distinction seems to be drawn between those terms in the federal analysis, either. But a “retrospective” “retroactive” application of decisional law will often involve disturbing a settled outcome. For example, in Linkletter, the Supreme Court considered whether its prior decision in Mapp v. Ohio operated retrospectively upon cases finally decided in the period prior to Mapp. Id. Mapp held that exclusion of evidence seized in violation of the search and seizure provisions of the Fourth Amendment was required of the States by the Due Process Clause of the Fourteenth Amendment. Id. at 619. Victor Linkletter was convicted of simple burglary in 1959. Id. at 621. At the time of his arrest, officers took his keys and used them to enter his home and business, where various items were seized without a warrant. Id. Linkletter lost his various appeals, and the Supreme Court of Louisiana affirmed his conviction in February 10 of 40 of 1960. Id. Months later, Mapp was announced and Linkletter filed an application for habeas corpus, which was denied, and then sought the same relief in federal court, where it, too, was denied by the trial court. Id. On appeal, the federal appellate court found that the searches were too remote from Linkletter’s arrest to be constitutional but Mapp was not retrospective; as a result, the trial court’s denial of habeas corpus was affirmed. Id. In making that determination, the Supreme Court noted that retrospective application of Mapp would result in “the wholesale release” of previously convicted defendants. Id. at 637. 3. Substantive, Procedural, and Remedial A matter is considered substantive if it “defines, creates, or regulates rights—‘those existing for their own sake and constituting the normal legal order of society, i.e., the rights of life, liberty, property, and reputation’.” DeLisle v. Crane Co., 258 So. 3d 1219, 1224 (Fla. 2018) (citing Allen v. Butterworth, 756 So. 2d 52, 59 (Fla. 2000)). A matter is considered procedural if it relates to “the form, manner, or means by which substantive law is implemented.” Id. (citing In re Fla. Rules of Criminal Procedure, 272 So. 2d 65, 65 (Fla. 1972)); see_also Kenz v. Miami-Dade Cnty., 116 So. 3d 461, 466 (Fla. 3d DCA 2013) (change in section 768.0755, which required plaintiff to produce evidence of defendant’s actual or constructive knowledge, was procedural and not substantive); Litvin v. St. Lucie Cnty. Sheriff's Dep’t, 599 So. 2d 1353, 1355 (Fla. 1S" DCA 1992) (statutory amendment that imposed “actual knowledge” threshold in a workers’ compensation claim was procedural); Stuart L. Stein, P.A. v. Miller Indus., Inc., 564 So. 2d 539, 540 (Fla. 4 DCA 1990) (“increasing the burden of proof to a ‘clear and convincing’ standard did not amount to a substantive change in the statutory scheme” and may be applied retroactively); Larocca v. State, 289 So. 3d 492, 493 (Fla. 4" DCA 2020) (“We apply Daubert to the facts of this case because the amendment 11 of 40 implementing Daubert is procedural and so the change applies retroactively.”). “Stated differently, procedural law ‘includes all rules governing the parties, their counsel and the Court throughout the progress of the case from the time of its initiation until final judgment and its execution.” Id. at 1225 (citing Allen, 756 So. 2d at 60); see also id. (citing Haven Federal Savings & Loan Ass’n vy. Kirian, 579 So. 2d 730, 732 (Fla. 1991)) (“It is the method of conducting litigation involving rights and corresponding defenses.”); Bionetics Corp. v. Kenniasty, 69 So. 3d 943, 948 (Fla. 2011) (quoting Massey v. David, 979 So. 2d 931, 936-37 (Fla. 2008)) (‘‘Practice and procedure’ may be described as the machinery of the judicial process as opposed to the product thereof. It is the method of conducting litigation involving rights and corresponding defenses.”) (internal quotations omitted). A new procedural statute is “generally held applicable to all pending cases,” Young v. Altenhaus, 472 So. 2d 1152, 1154 (Fla. 1985), in part because “no one has a vested interest in any given mode of procedure.” State v. Kelly, 588 So. 2d 595, 597 (Fla. 1 DCA 1991). It possible for a statute to have qualities that are a blend of more than one of the substantive, remedial, or procedural categories. Bionetics Corp., 69 So. 3d at 948 (“The distinction between substantive and procedural law, however, is not always clear.”) And when this is so”, the court must identify what aspect dominates. Id. (citing State v. Raymond, 906 So. 2d 1045, 1049 (Fla. 2005)) (“[W]hen procedural aspects overwhelm substantive ones, the law may no longer be considered substantive.”). B. Florida Has Its Own Analytical Framework, Distinct From the Federal One Although Florida courts have begun to trend toward the federal courts in many respects, Florida utilizes an analytical framework of temporal reach that is not identical to the federal ? And dispositive. 12 of 40 analysis. At times, Florida decisions cite to the federal precedents without (a) necessarily adopting them wholesale or (b) flagging the differences between the overall approaches. The analysis was already nuanced to begin with for the reasons identified supra; the undistinguished differences between the federal and Florida standards could be a reason why this area continues to be challenging in the Florida system. See, e.g., Federal Express Corp. v. Sabbah, 357 So. 3d 1283 (Fla. 3d DCA 2023) (Gordo, J., concurring in result only) (“express[ing] concern” that “predictability in application of newly amended rules and statutes remains elusive—if not imprecise under our current precedent.”). 1. The Federal Analysis Many of the federal cases analyze the issue of temporal reach of a new law in the context of an appellate case. That is yet another nuance that must be teased out. In the case at bar, we are analyzing a new statute that applies to a case that has not yet been tried and in which no final judgment has been entered. This is unlike the question discussed in many of the federal cases, which ask whether to apply a new law passed during an appellate proceeding, after the entry of a final judgment below. With that distinction identified, a cursory review of the cases is still helpful. In the context of an appeal, the general rule is that a court “is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.” Bradley v. School Bd. of Richmond, 416 U.S. 696, 711 (1974); Thorpe v. Housing Auth. of City of Durham, 393 U.S. 268, 281 (1969) (“The general rule, however, is that that an appellate court must apply the law in effect at the time it renders its decision.”). “The same reasoning has been applied where the change was 13 of 40 constitutional, statutory, or judicial.” Thorpe v. Housing Auth. of City of Durham, 393 U.S. 268, 282 (1969). Bradley involved an award of attorneys’ fees in a protracted school desegregation case. The suit was initiated as a class action in 1961, and in 1964 the trial court approved a “freedom of choice” plan and awarded nominal attorneys’ fees of $75. Id. at 701. The plan was affirmed, the appellate court found no error in the nominal fee award, but the Supreme Court vacated the plan and remanded the case. Id. On remand, the trial court approved a revised “freedom of choice” plan that was agreed to by the petitioners. Id. That revised plan was in operation for about four years. Id. In 1968, while the plan was in effect, in a different case called Green v. County School Board of New Kent County, the Supreme Court held that the type of plan established in Bradley could not stand. Id. In 1970, the Bradley petitioners then moved for relief in the trial court in light of Green. Id. In addition to seeking a new plan, the petitioners also sought an award of reasonable attorneys’ fees. Id. The trial court awarded counsel over $43,000 in fees between the date of the 1970 motion for fees and the date of the order, noting the absence of any explicit statutory authorization for fees in school desegregation cases but rooting its decision in its general equity power. Id. at 706. While the case was again before the appellate court and prior to its decision, Congress passed the Education Amendments of 1972, which granted federal courts the authority to award reasonable attorneys’ fees in school desegregation cases. Id. at 709. The appellate court determined that the new law did not sustain the allowance of fees because there were no orders pending or appealable when the trial court initially made its fee award or when the new statute became effective. Id. at 710. The Supreme Court began its analysis by “anchor[ing] [its] holding on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result 14 of 40 in manifest injustice or there is statutory direction or legislative history to the contrary.” Id. at 711. It then considered concerns raised in prior cases about the application of an intervening change in the law to a pending action, which it found countered on (a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights. Id. at 719-20. Finding that the nature and identity of the parties and the rights involved weighed in favor of application of the new law to the pending case, the court turned to the nature of the impact of the change in the law on those rights. Id. at 720-21. Concluding that the intervening change in the law did not alter the impact of the law on the parties’ rights, the Court found (1) that the new statute did not create any new substantive obligation on the school board and (2) there was no indication that the Board would have changed its conduct so as to render the litigation unnecessary, if it could have foreseen the change in the law. Id. at 720-21. Citing Goldstein v. California, 412 U.S 546, 551-52 (1983) as an example, the Bradley Court acknowledged that the Legislature can expressly provide that a law has only prospective effect, and when it does so the courts follow that lead. Id. at 715 n.21. In Goldstein, the Court considered federal copyright statutes that were amended by Congress while a case was pending in state courts. Goldstein, 412 U.S at 552. The Court rejected application of the amendment because the statute specifically provided that it was “to be available only to sound recordings ‘fixed, published, and copyrighted’ on and after February 15, 1972, and before January 1, 1975, and that nothing in Title 17, as amended is to ‘be applied retroactively or (to) be construed as affecting in any way any rights with respect to sound recordings fixed before’ February 15, 1972.” Id. at 552. After Bradley, the Supreme Court decided Landgraf v. USI Film Products, which established a two-step analysis for considering the temporal reach of a new statute. 511 U.S. 244 15 of 40 (1994). Then, in Lindh v. Murphy, 521 U.S. 320 (1997), the court added an additional step. Shortly after Lindh was decided, the Third Circuit summarized the Landgraf / Lindh framework in Matthews v. Kidder, Peabody & Co.., Inc. as follows: First, we must look for an “unambiguous directive” from Congress as to the temporal reach of a statute. If one is found, we must follow it and our inquiry is done. In the absence of a clear statement from Congress, we must use normal statutory construction rules to determine if Congress manifested an intent to only apply a statute to future cases. Again, if we find an intent to not apply a statute retrospectively, our inquiry is done. If neither an express command in either direction nor an intent to apply a statute prospectively is found, we look at the effect that the statute will have. Does it have “retrospective effect,” i.e., does it “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed?” Or, conversely, does the statute affect only prospective relief, or change procedural rules, or simply allocate jurisdiction among fora? If the statute does not have retroactive effect, we apply the usual statutory construction rules to determine whether it should be applied to pending cases. However, if the statute does have retroactive effect, we employ the strong presumption against applying a statute with retroactive effect to pending cases: At this point, only Congress’s clear intent to apply the statute retrospectively will overcome the presumption. 161 F.3d 156, 161 (3d Cir. 1998) (Becker, C.J.) (internal citations and emphasis omitted). Notably, the first step in the federal approach is to look for an “unambiguous directive” in the enactment. It is only after doing that that the federal courts consider the character of the new law. The case at bar highlights this as a material distinction in the analysis. 2. The Florida Approach 16 of 40 In Florida, the test is different. How the test has been articulated has, at times, created some uncertainty. In Arrow Air, Inc. v. Walsh, the Supreme Court considered whether the private sector Whistle-Blower’s Act, which became effective on June 7, 1991, could be applied retroactively to impose liability for an employee termination that occurred before the effective date. 645 So. 2d 422, 423 (Fla. 1994). Walsh, the terminated employee, alleged that he was fired on May 15, 1989, in retaliation for reporting safety violations and delaying a flight. Id. The trial court granted a motion to dismiss for failure to state a claim on the basis that Florida recognized no cause of action for retaliatory discharge at the time. Id. Walsh appealed and the Third District affirmed, but while it considered a motion for rehearing the private sector Whistle-Blower’s Act took effect. Id. at 423-24. After asking for supplemental briefing, the Third District vacated its decision, reversed the dismissal of Walsh’s complaint, and held that because the act was remedial it should be applied to Walsh’s pending case on remand. Id. at 424. On review of the Third District’s ruling, the Supreme Court acknowledged that there is no presumption in favor of prospective application for remedial statutes; however, it held that the Whistle-Blower’s Act was not properly characterized as remedial because it created a new cause of action. Id. In the absence of an express statement of legislative intent, the court underscored as a “well-established rule of statutory construction” that there is a “presumption against retroactive application of a law that affects substantive rights, liabilities, or duties.” Id. at 425. It also underscored that the presumption against retroactivity cannot be overcome by the “mere fact that ‘retroactive application of a new statute would vindicate its purpose more fully.” Id. In State Farm Mutual Auto Insurance Company v. Laforet, the Supreme Court held that the Legislature does not have the last word on characterization of a statute as procedural or 17 of 40 remedial. 658 So. 2d 55, 59 (Fla. 1995). More importantly, it held that courts may override even a clear expression of intent about temporal reach if it would violate constitutional protections to give effect to that intent. Id. In that case, the Court considered whether newly created section 627.727(10), Florida Statutes, was a remedial statute that should be applied retroactively. Id. The enacting legislation provided that: [t]he purpose of subsection (10) of section 627.727, Florida Statutes, relating to damages, is to reaffirm existing legislative intent, and as such is remedial rather than substantive. This section and section 627.727(10), Florida Statutes shall take effect upon this act becoming a law and, as it serves only to reaffirm the original legislative intent, section 627.727(10), Florida Statutes, shall apply to all causes of action accruing after the effective date of section 624.155, Florida Statutes. Id.at 60 (quoting Ch. 92-318, § 80, Laws of Fla.). Because section 624.155 was originally enacted in 1982 and the amendment passed in 1992, the implementing language was interpreted as a clear intent to apply the statute retroactively. Id. at 61. Though the “general rule [is] that a substantive statute will not operate retrospectively absent clear legislative intent to the contrary, [and a] procedural or remedial statute is to operate retrospectively,” and despite its recognition that the Legislature labeled the statute as remedial and clearly intended to apply the statute retroactively, the Court nevertheless held that the statute could not be applied retroactively. Id. In reaching that conclusion, it opined that the statute was, “in substance, a penalty” and “[jJust because the Legislature labels something as being remedial” that “does not make it so.” Id. In Smiley v. State, the Supreme Court underscored the importance of constitutional concerns when analyzing temporal reach. 966 So. 2d 330 (2007). It determined that section 776.013, Florida Statutes (2005) did not apply to cases pending at the time the statute became effective. Id. at 332. Section 776.013 expanded the right of self-defense by specifically creating 18 of 40 “no duty to retreat” in certain situations where deadly force can be used immediately without the need to first retreat. Id. at 334. The bill provided that “[t]his act shall take effect October 1, 2005” and the statute carried an effective date of October 1, 2005. 2005 Fla. Sess. Law. Serv. Ch. 2005-27; Fla. Stat. § 776.013. The defendant, Smiley, was charged with murder in the first degree following a shooting on November 6, 2004. Smiley, 996 So. 2d at 332. Smiley claimed self-defense. Id. The trial court granted Smiley’s request for certain jury instructions based on the new statute, and the State sought review through an emergency petition for writ of certiorari to the Fourth District. Id. at 332. The Fourth District held that section 776.013, Florida Statute, does not apply to conduct committed prior to the October 1, 2005 effective date and for that reason, Smiley was not entitled to the jury instructions he requested. Id. It further concluded that because the statute was a substantive amendment to Section 775.01, Florida Statutes, it would violate article X, section 9 of the Florida Constitution if it were given retroactive application. Id. at 333. Moreover, it found that section 776.013 “was not remedial, which would permit retroactive application” because it created a new right to self-defense with no duty to retreat. Id. The Smiley court acknowledged the distinction between changes in statutory law as opposed to decisional law. Id. Recognizing that its precedent in Witt v. State, 387 So. 2d 922 (Fla. 1980) did not apply because Witt only determines when a change in decisional law applies retroactively, the court explained that “a different analysis must be applied to determine the question of whether a change in the statutory law, such as section 776.013, should receive retroactive application.” Id. at 334. Next, Smiley provided that “[i]n the analysis of a change in statutory law, a key determination is whether the statute constitutes a procedural/remedial change or a substantive 19 of 40 change in the law. ” Id. Because remedial statutes or statutes relating to modes of procedure? “do not create new or take away vested rights” and “only operate in furtherance of the remedy or confirmation of rights already existing” they “do not come within the legal conception of a retrospective law, or the general rule against retrospective operation of statutes.” Id. (citing City of Lakeland v. Catinella, 129 So. 2d 133, 136 (Fla. 1961)). In the case of a remedial statute, there is no presumption in favor of prospective application and “whenever possible, such legislation should be applied to pending cases in order to fully effectuate the legislation’s intended purpose.” Id. Finding that section 776.013 significantly changed the affirmative defense available, the Smiley court concluded that the change in the law was substantive. Id.at 336. Because section 776.013 was substantive, a presumption of prospective application arose and led to two interrelated inquiries: (1) was there clear evidence of legislative intent to apply the statute retroactively; and (2) if the legislation clearly expresses an intent that it apply retroactively, whether retroactive application constitutionally permissible. Id. at 336. Because article X, section 9 provides that “[rJepeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed” the Smiley court determined 3 In Cantinella, the Court equated “procedural” and “remedial” statutes, at least for analytical purposes: Remedial statutes or statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within the legal conception of a retrospective law, or a general rule against retrospective operation of statutes. 129 So. 2d at 136. Cantinella involved a controversy between multiple workman’s compensation carriers over which was responsible for a claimant’s injuries. Id. at 134. A newly amended statute, which took effect after the claimant’s injuries were suffered but before the controversy between carriers arose, was construed to be procedural and applied to the pending case. Id. at 136-37. The text of the enacting legislation was not an issue in Cantinella. 20 of 40 that it was not necessary to address whether there was legislative intent to apply the statute retroactively, because it would be “constitutionally impermissible” to do so. Id. 336-37. In Old Port Holdings, Inc. v. Old Port Cove Condominium Association One, Inc., the Supreme Court considered whether a right of first refusal was invalid under the rule against perpetuities. 986 So. 2d 1279 (2008). Without addressing the substantive/procedural distinction’, the court held that because the statute did not evidence an intent that it apply retroactively the statute, it did not operate retroactively. Id. 1284. In Massey v. David, the Supreme Court considered the constitutionality of a statute limiting recovery of expert witness fees. 979 So. 2d 931 (Fla. 2008). It recognized its past precedent on whether a matter is substantive or procedural: Substantive law has been defined as that part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer. It includes those rules and principles which fix and declare the primary rights of individuals with respect towards their person and property. On the other hand, practice and procedure “encompass the course, form, manner, means, method, mode, order, process or steps by which a party enforces substantive rights or obtains redress for their invasion. ‘Practice and procedure’ may be described as the machinery of the judicial process as opposed to the product thereof.” It is the method of conducting litigation involving rights and