Preview
Filing# 177596188 E-Filed 07/17/2023 05:02:22 PM
IN THE CIRCUIT COURT OF THE ELEVENTH
JUDICIAL CIRCUIT IN AND FOR BROWARD
COUNTY, FLORIDA
CASE NO.: CACE-21-016578
JOY FURER
Plaintiff,
V
GG RE HOLLYWOOD BEACH 613 LLC,
And RELAXPRO, LLC,
Defendants.
'
DEFENDANT, GG RE HOLLYWOOD BEACH 613 LLC'S:
MOTION IN LIMINE REGARDING PAST AND FUTURE MEDICAL TREATMENT
Defendant, GG RE HOLLYWOOD BEACH 613 LLC, by and through the undersigned
attorneys, hereby moves to restrict and allow evidence regardingpast and future medical treatment
in accordance with recentlyenacted section 768.0427(2),Florida Statutes,and states as follows:
1. ofnegligentsecurityrelated to an assault on Plaintiff
This case involves allegations
by non-partieswhile she was a guest at Defendant's hotel. Plaintiff seeks to recover for alleged
personalinjurysustained as a result of the incident.
2. On March 24,2023, Chapter2023-15, Florida Laws, commonly known as HB 837,
was enacted into law and, per section 31, was effective immediately.
3 Section 6 of HB 837 enacted section 768.0427, Florida Statutes,which establishes
new procedures regarding the admissibilityof evidence relatingto past and future medical
treatment or service expenses:
1
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/17/2023 05:02:22 PM.****
(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 personalinjuryor 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 actuallypaid,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 obligatedto pay the
health care provider to satisfythe charges for the claimant's incurred medical
treatment or services,plus the 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
protectionor otherwise does not submit chargesfor 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 chargesunder the insurance contract or regulation,
plus
the claimant's share of medical expenses under the insurance contract or
had the claimant obtained medical services or treatment pursuant
regulation, 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 on the date of the claimant's incurred medical
rate in effect
treatment or services,or, if there is no applicableMedicare rate for a service,
170 percent ofthe applicablestate Medicaid rate.
4. If the claimant obtains medical treatment or services under a letter of protection
and the health care provider subsequentlytransfers the rightto receive payment
under the letter of protectionto a third party, evidence of the amount the third
party paid or agreed to pay the health care providerin exchange for the rightto
receive payment pursuant to the letter o f 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 prove the amount of damages for any future medical treatment or
to
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 providerscould be satisfied if submitted to such
2
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 eligiblefor such health care coverage,
evidence of 120 percent ofthe Medicare reimbursement rate in effect at the time
of trial for the medical treatment or services the claimant will receive,or, ifthere
isno applicableMedicare rate for a service, 170 percent of the applicablestate
Medicaid rate.
3. Any evidence of reasonable future amounts to be billed to the claimant for
medically necessary treatment or medically necessary services.
4. Section 30 of HB '
837 provides that [e]xceptas otherwise expresslyprovided in
this act, this act shall apply to causes of action filed after [March 24,2023.]."
5. Section 768.0427(2),Florida Statutes,identifies the types of evidence that may be
submitted to the jury to calculate the past and future medical treatment and service expenses in
personalinjuryactions.
6. As analyzed below, this Court must apply 768.0427(2) to the instant case because
it is proceduralin nature as it regulatesthe discovery and admissibility
of evidence in litigation
but does not in any way affect Plaintiff's substantive legalrights.
MEMORANDUM OF LAW
I. A statutorv change mav be applied retroactivelv if it is procedural or remedial in
nature.
7. As the Florida Supreme Court explained in Smiley v. State,966 So. 2d 330,334
(Fla.2007), the analysisof whether a change in the statutory law should receive retroactive
applicationrequiresa determination of whether the statute sought to be applied retroactively
is
substantive in nature, or procedural/remedialin nature. Ordinarily,procedural statues apply
while substantive measures are presumed
retroactively, to Id.;see also Young
applyprospectively.
v. Altenhaus, 472 So. 2d 1152, 1154 (Fla.1985);Adjeiv. First Cmty. Ins. Co., 352 So. 3d 900,904
3
(Fla.3d DCA 2022). Importantly,there is a presumption in favor of application
of proceduralor
remedial statutory changes to pending cases, as the Smiley Court noted:
Remedial statutes or statutes relatingto remedies or modes ofprocedure, which do
not create new or take away vested rights,but only operate in furtherance of the
remedy or confirmation do not come within the legal
of rightsalreadyexisting,
conceptiono f a retrospective
law, or the generalrule againstretrospective
operation
of statutes.
Moreover, the "presumption in favor of prospectiveapplicationgenerallydoes not
rather,whenever possible,such legislation
apply to 'remedial' legislation; should
be appliedto pending cases in order to fullyeffectuate the legislation's
intended
purpose."
Smiley,966, So. 2d at 334 (citations
omitted).In other words, the Florida Supreme Court has held
that remedial or proceduralstatutes apply to pending cases not because they are an exceptionto
but because they do not even implicatethe rule.
the general rule againstretroactive application,
Id.;see also Love v. State,286 So. 3d 177, 189 (Fla.2019) (holdingthat the mere application
of a
new proceduralstatute in a pending case does not amount to retroactive application).
8 The United States Supreme Court further supported this conclusion in its decision
in Landgrq/. "Changes in procedural rules may often be applied in suits arisingbefore their
Because rules of procedure regulate
enactment without raisingconcerns about retroactivity.
secondary rather than primary conduct, the fact that a new procedural rule was instituted after
the conduct giving rise to the suit does not make application of the rule at trial retroactive.'
..
Landgrafv. USI Film Prod., 511 U.S. 244,275 (1994) (emphasis added).
9. New procedural statues can be applied to pending cases because "no one has a
vested interest in any given mode of procedure."State v. Kelley,5%% So. 1d 595, 597 (Fla.1 st
DCA 1991); accord -Yates v. Wal-Mart Stores, Inc., Case No. 5:10-cv-226/RS-GRJ, 2010 WL
4318795 (N.D. Fla. Oct. 27,2010); Ziccardi v. Strother,570 So. 2d 1319, 1320-21 (Fla.2d DCA
1990)."[S]tatuteswhich relate only to the procedureor remedy are generallyheld applicable
to all
4
pending cases." Young v. Altenhaus, 471 So. 2d 1152, 1154 (Fla.1985);"Procedural or remedial
enactments may apply without regard to the date of accident,because partiesdo not have a vested
rightin any particularprocedure. Russell Corp. v. Jacobs, 782 So. 2d 404,405 (Fla. 1 st DCA
2001).
10. Further, per the court in Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418
(Fla.4th DCA 2013), procedural changes in the law should be appliedto pending cases:
Even in the absence of
legislative indication that a statute should apply
retroactively,
procedural and remedial statutes "should be applied to
pending cases in order to fully effectuate the legislation's intended
purpose."Arrow Air, Inc. v. Walsh, 645 So.2d 422,424
(Fla.1994) (citation
omitted).The generalrule againstretroactive applicationof statutes does
not apply to procedural or remedial changes.See Smiley,966 So.2d at
334 (citing
Cio' 05 Lakeland V. Catinella,129 So.2d 133,
136 (Fla.1961));State Farm Mut. Auto. Ins. Co. v. Laforet,65% So.2d 55,
61 (Fla.1995) ("The generalrule is that a substantive statute will not operate
retrospectively absent clear legislative intent to the contrary, but that a
procedural or remedial statute is to operate retrospectively."
(citations
omitted)).
. .
"[Slubstantive law prescribesduties and rights and procedural law
.
concerns the means and methods to apply and enforce those duties and
Alamo Rent-A-Car, Inc.
rights." v. Mancusi, 632 So.2d 1352,
1358 (Fla.1994) (citation
omitted).
M (emphasis added); see also Kenz v. Miami-Dade County & Unicco Serv. Co., 116 So, 3d 461
(Fla. 3d DCA 2013) (statingthat "[s]ubstantivelaw prescribesduties and rights,whereas
procedurallaw concerns the means and methods to enforce those duties and rights.").
II. Distinguishing substantive and procedural statues.
11. "Substantive law prescribesduties and rights,and procedural law concerns the
means and methods to Ace Disposal v. Holley,668 So.
apply and enforce those duties and rights."
2d 645, 646 (Fla.1 st DCA 1996) (quotingAlamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352,
1358 (Fla.1994))."[P]racticeand procedure encompass the court, form, manner, means, method,
5
mode, order,process or steps by which a party enforces substantive rightsor obtains redress for
their invasion. Practice and procedure may be described as the machinery of the judicialprocess
as opposed to the product thereof." Caple v. Tuttle's Design-Build,Inc.,751 So. 1d 49, 54 (Fla.
2000).
12. of evidence are often considered procedural.See
Rules regardingthe admissibility
e.g, Kenz v. Miami-Dade CW., 116 So. 3d 461, 466 (Fla.3d DCA 2013) (the change in Section
produce evidence of defendant's actual or constructive knowledge
768.0755, requiringplaintiffto
is procedural,not substantive);
LiA?in v. St. Dep't, 599 So.ld 1353,1355 (Fla.
Lucie Cty.Sheriff's
1 st DCA 1992) (statutory
amendment that imposed an "actual knowledge" threshold in a Worker's
Compensation claim was procedural);
Stuart L. Stein,P.A. v. Miller Indus., Inc. (564 So. 2d 539,
540 (Fla.4th DCA 1990) ("increasingthe burden ofproofto a 'clear and convincing' standard did
not amount to a substantive change in the statutory scheme" and may be appliedretroactively);
Larocca v. State,289 So. 3d 492, 493 (Fla.4th DCA 2020) ("We apply Daubert to the facts of this
case because the amendment implementing Daubert is procedural and so the change applies
DeLisle
retroactively"); v. Crane Co., 258 So. 3d 1219, 1229 (Fla.2018) (findingDaubert
proceduralbecause it does not create, define,or regulatea right).
III. Section 768.0427 is unequivocally procedural, not substantive, and thus must be
applied to this case.
13. In order to prevailin this case, Plaintiff must prove that Defendant failed to keep
the premises safe and secure from reasonably foreseeable Nicholson
criminal activity. v.
StonybrookApartments,LLC, 154 So. 3d 490, 494 (Fla.4th DCA 2015), see also Ameijeiras v.
Metro. Dade Cnty.,534 So. 2d 812, 813 (Fla.3d DCA 1988) ("A landowner has a duty to protect
an invitee on his premises from a criminal attack that is reasonablyforeseeable.").
6
14. Section 768.0427(2) does not create or change any element of Plaintiff's cause of
action. The statute does not create, define,or regulatethe standard of care, duty,breach, or types
o f recoverable damages applicableto this case. It does not eliminate any vested rightso f Plaintiff.
It operates only in furtherance of the remedy or confirmation of rightsalreadyexistingbecause it
changes only the procedures and processes used at trial and specifieswhat evidence the parties
may introduce to allow the factfinder to appropriatelydetermine the value of a certain category of
Plaintiff's recoverable damages. For these reasons, this Court must apply section 768.0427(2) to
the instant case.
IV. Other Circuit Judges Have Found in Favor of Defendant's Arguments.
15. While Defendant recognizesthat this Court is not bound by the decisions of other
trial courts, other circuit courtjudges,includingjudge's from the instant circuit,
have ruled in favor
ofthe arguments made by Defendant here. See Sapp, et.al. v. Brooks, et.al.,Case-No. 17-CA-5664,
Am. Order Granting Defendant's Motion in Limine (Fla.13th Cir.,HillsboroughCty.,May 19,
2023, Hon. Ann-Leigh Gaylord Moe), a true and correct copy of which is attached hereto as
Exhibit A; Mcintosh v. North Broward HospitalDistrict,Case -No. CACE-19-001017, Order on
Defendant's Motion to Amend Its Affirmative Defenses (Fla.17th Cir.,Broward Cty.,June 12,
2023, Hon. Mark A. Speiser),a true and correct copy of which is attached hereto as Exhibit B;
Schmitt v. Anderson, Case No. CACE-21-020943, Order on Defendant's Motion to Amend Her
Affirmative Defenses (Fla.17th Cir.,Broward Cty.,June 9,2023, Hon. Michael Robinson), a true
and correct copy ofwhich is attached hereto as Exhibit C;
WHEREFORE, Defendant, GG RE HOLLYWOOD BEACH 613 LLC, respectfully
requests the Court to issue an order as follows:
7
(1) As to past medical expenses alreadypaid, allow Plaintiff to offer only evidence of the
amount paid by any payor, pursuant to Section 768.0427(2)(a);
(2) As to past medical expenses not yet paid, allow Defendant to offer any evidence
includingbut not limited
permittedby Section 768.0427(2)(b),
specifically to, evidence of
120 percent ofthe Medicare reimbursement rate in effect on the date of Plaintiff's incurred
medical treatment or services,or, ifthere is no applicableMedicare rate for a service,170
state Medicaid rates, and evidence of the amount any third-party
percent of the applicable
loan services were paid in return for the rightto receive payment under any letters of
and
protection;
(3) As to future medical expenses, allow Defendant to offer any evidence specifically
permittedby Section 768.0427(2)(c).
DATED this ,th
17 day o f July,2023.
ANDERSONGLENN LLP
/s/ .John .J. Glenn
John J. Glenn, Esquire
Florida Bar No.. 957860
Email. jglenn@asglaw.com
Amanda N. Rumker, Esquire
Florida Bar No.. 125580
Email: arumker@asglaw.com
2650 North MilitaryTrail,Suite 430
Boca Raton, FL 33431
Tel.: (561) 893-9192
Fax: (561) 893-9194
Counsel for Defendant GG Re Hollywood
Beach 613 LLC
8
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 17??day ofJuly,2023, I electronically
filed the foregoing
document with the Clerk of the Court using Florida Court's E-Filing Portal and certifythat all
counsel of record have been served via transmission of Notice of Electronic Filinggenerated by
Florida Court E-FilingPortal or in some other authorized manner for those counsel or partieswho
are not authorized to receive Notices of Electronic Filing.
electronically
/s/ .John .J. Glenn
John J. Glenn, Esquire
9
EXHIBIT A
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
GENERAL CIVIL DIVISION
SHARON M. SAPP; STACY M. CHANEY;
et al.,
Plaintiffs, CASE NO.: 17-CA-5664
DIVISION: E
V
JAMES BROOKS; J.B. COACHLINE, INC.,
Defendants.
i
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 representedPlaintiffs Sharon M. Sapp and Stacy M. Chaney.
Heather Stover, Esq. and Susan Wilson, Esq. of Ogden & Sullivan representedDefendants James
Brooks and J.B. Coachline, Inc.
I. Introduction
A. The Question Presented
The Motion presents a question about the temporal reach of recently-enactedsection
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
to consider issues like this,it can be challengingto reach an unshakeable conviction that no
controllingcase could have been overlooked. But no one has produced a case that squarely
addresses and disposesof the questionraised in the Motion.
The questionis this: if a new statute is (1)proceduralin nature, (2) and the Legislature
has provided direction on temporal reach, (3) does the judicialbranch follow its precedent on
temporalreach of proceduralstatutes 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 questionsto ask. First,was there clear evidence of
legislative If the answer
intent to apply it retroactively? is yes, then the second questionis this:
is retroactive applicationconstitutionally
permissible?
The Statute has an effective date o f March 24,2023. And the enactinglegislation
says
"[e]xcept as otherwise expresslyprovided 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 analysisis different
with procedural statutes. The judicialbranch has shown the Legislaturean answer key how it
the temporal reach of statutes. The Legislature
interprets againstthat background.
legislates
The answer key is this:
There is a makes law for the future.
core assumption that the Legislature
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 ofthe two).
If it is substantive,there are constitutional reasons why the judicialbranch must tread
carefullywhen 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
expresseda clear intent
that the law be applied retroactively.If the statute is substantive and there is no clear intent
then the basic assumption that the Legislaturewas making law for
expressedby the Legislature,
the future will apply. If the statute is substantive and there is a clear expressionfrom the
Legislaturethat retroactive applicationwas 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
I-275 in Tampa, Florida. When the accident occurred, Plaintiffs Sharon Sapp and Stacy Chaney
were passengers on a shuttle bus operatedby 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 arisingfrom the accident.
R-ather than rely on Medicare and/or Medicaid, Plaintiffs executed various agreements to pay
3 of 40
providerswho did not bill insurance, subjectto the outcome of this litigation
(the "Letters of
Protection"). Defendants allegethat third-partyor factoringcompanies have since purchased
the rightto 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 1
in Section 6 and providesthat,in pertinentpart, 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
personalinjuryor 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 actuallypaid,regardlessof 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 obligatedto pay the health care provider to satisfythe charges
for the claimant's incurred medical treatment or services,plus the
1
As of the rendition ofthis Order, section 768.0427, Fla. Stat. constitutes onlyprimafacie evidence ofthe 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) (discussingthe status of legislationenacted 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. Ifthe claimant has health care coverage but obtains treatment
under a letter of protectionor otherwise does not submit charges
for any health care provider'smedical treatment or services to
health care coverage, evidence of the amount the claimant's health
care coverage would pay the health care providerto satisfythe 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
applicablestate Medicaid rate.
4. If the claimant obtains medical treatment or services under a
letterof protectionand the health care provider subsequently
transfers therightto 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 rightto
receivepayment 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
for any such health care coverage, evidence
Medicaid, or is eligible
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. Ifthe claimant does not have health care coverage or has health
care coverage through Medicare or Medicaid, or is eligiblefor
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
applicablestate 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 provisionin Section 30 that "[e]xceptas otherwise expresslyprovided
in this act, this act shall apply to causes of action filed after the effective date of this act." In
Section 31, the Act providesthat "[t]hisact shall take effect upon becoming law."
E. The Relief Requested in the Motion
The ink had not dried on the Governor's signaturebefore this case presentedthe question
whether the Statute appliesto pending cases like this one. The Motion seeks to:
(1) allow Plaintiffs to offer only evidence of the amount actuallypaid by any payer,
pursuant to section 768.0427(2),for past medical expenses alreadypaid;
(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-partyloan services were paid in return for the right to receive
payment under any letters and
o f protection;
(3) allow Defendants to offer any evidence specificallypermitted 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 hearingwhere the Motion was argued,other motions
same pre-trial in limine were
6 of 40
granted in rulingsfrom 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.
II. Analysis
Whether it comes about by a change in decisional law, a statute, or administrative
a questionfrequentlyarises over whether a new or amended law appliesto certain
regulation,
case. Nuances abound in the analysisof that question.
A. What Do the Words Mean?
1. Temporal Reach
"Temporal reach" is a term of art that refers to an analysisthat governs to which period
oftime (and therefore,to which cases)a new law applies.
2. Prospective,Retrospective,and Retroactive
The three words used to and
categorizetemporal reach are prospective,retrospective,
retroactive. They are bandied about enough that it is easy to overlook the importance of
understandingwhat they reallymean. Defining the terms and appreciatingthe 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
relatingto the future: effective in the future." Webster's Third New Int'l Dictionary 1821
(2002). Black's Law Dictionarydefines a "prospectivelaw" as "[0]ne applicableonly to cases
which shall arise after its enactment." Black's Law Dictionary1100 (5thed. 1979).
The word "retroactive" means "operative,finding,and taking effect priorto 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 rightsacquiredunder existinglaws, create
new obligations,impose a new duty, or attach a new disability
in respect to the transactions or
considerations alreadypast." Black's Law Dictionary 1184; see also Webster's Third New Int'l
Dictionary 1940 (defining "retroactive law" as "a law that operates to make criminal or
punishableor in any way expresslyaffects an act done priorto the passing of the law.").
means "contemplative of or
The word "retrospective" relative to past events" or
"affectingthings past." Webster's Third New Int'l Dictionary 1941. A "retrospectivelaw" is
one
which looks backward or contemplatesthe past; one which is made to affect acts
or facts occurring,or rightsaccruing,before it came into force. Every statute
which takes away or impairs vested rightsacquired under existinglaws, 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 legaleffect 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 importantto appreciatethat meaning o f the
words prospective,retroactive,and retrospective
will vary based on whether they are discussed
in the context of statutory law or decisional law.
i. Statutory Law
"As makes law for the future,not the past."
a general,almost invariable rule,a legislature
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
LegislativePower of the States of the American Union, 62-63 (1868) (words in a statute should
8 of 40
operate prospectivelyonly "unless the words employed show a clear intention that it should have
a retrospective
effect.").
While in general,the Legislaturemakes law for the future, so long as it meets a
constitutional test, the Legislaturecan also make law retroactive. A statute is considered
"retroactive" if "it would impair rightsa party possessed when he acted, increase a party's
of past conduct, or impose new duties with respect
liability to transactions alreadycompleted."
Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1997). Retroactive legislation
is often enacted
in an effort to rightsand burdens imposed in the past" or "impose a
"readjust[] new duty or
based on past
liability 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 'harsh and
"particularly
is lawful. Id: at 733.
retroactive legislation
oppressive,"'
As an example of explicitly in 1980 an ERISA
retroactive legislation, 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 employers" from withdrawing from plans
"opportunistic
while Congress was consideringthe legislation.
Id: at 723-24.
While not explicitly meant
retroactive,federal legislation to compensate disabled coal
miners was considered to have retroactive 4*ct when it requiredemployers to compensate
former employees who left their work in the industrybefore the act was passed. Usery v. Turner
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 effect... And
Act has some retrospective it may be that the imposed by the Act for
liability
disabilities suffered by former employees was not anticipated
at the time of actual employment.
But our cases are clear that readjustingrights and burdens
legislation is not unlawful solely
9 of 40
because it upsets otherwise settled expectations. This is true even though the effect of the
is to impose a
legislation 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 terminologyof "prospective"
rulingsin court cases, there is a range of meaning. 381
U.S. 618, 621-22 (1965) (recognizingthat a "purely prospective"decision "does not apply even
to the partiesbefore the court.").A purelyprospectiveapplication
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
prospectivein decisional law, though, means that the decision will apply to the case before the
court and will also apply to future cases.
and "retroactive" are generallyused interchangeably.
In Florida,the terms "retrospective"
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.
or "retroactive" applicationof decisional law will often involve
But a "retrospective"
disturbinga settled outcome. For example, in Linkletter,
the Supreme Court considered whether
its priordecision in Mapp v. Ohio operatedretrospectively
upon cases finallydecided in the
periodpriorto Mapn. Id= Mapn held that exclusion of evidence seized in violation of the search
and seizure provisionsof the Fourth Amendment was requiredof the States by the Due Process
Clause of the Fourteenth Amendment. Id. at 619. Victor Linkletter was convicted
Preview
Filing# 177596188 E-Filed 07/17/2023 05:02:22 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-21-016578 JOY FURER Plaintiff, V GG RE HOLLYWOOD BEACH 613 LLC, And RELAXPRO, LLC, Defendants. ' DEFENDANT, GG RE HOLLYWOOD BEACH 613 LLC'S: MOTION IN LIMINE REGARDING PAST AND FUTURE MEDICAL TREATMENT Defendant, GG RE HOLLYWOOD BEACH 613 LLC, by and through the undersigned attorneys, hereby moves to restrict and allow evidence regardingpast and future medical treatment in accordance with recentlyenacted section 768.0427(2),Florida Statutes,and states as follows: 1. ofnegligentsecurityrelated to an assault on Plaintiff This case involves allegations by non-partieswhile she was a guest at Defendant's hotel. Plaintiff seeks to recover for alleged personalinjurysustained as a result of the incident. 2. On March 24,2023, Chapter2023-15, Florida Laws, commonly known as HB 837, was enacted into law and, per section 31, was effective immediately. 3 Section 6 of HB 837 enacted section 768.0427, Florida Statutes,which establishes new procedures regarding the admissibilityof evidence relatingto past and future medical treatment or service expenses: 1 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/17/2023 05:02:22 PM.**** (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 personalinjuryor 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 actuallypaid,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 obligatedto pay the health care provider to satisfythe charges for the claimant's incurred medical treatment or services,plus the 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 protectionor otherwise does not submit chargesfor 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 chargesunder the insurance contract or regulation, plus the claimant's share of medical expenses under the insurance contract or had the claimant obtained medical services or treatment pursuant regulation, 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 on the date of the claimant's incurred medical rate in effect treatment or services,or, if there is no applicableMedicare rate for a service, 170 percent ofthe applicablestate Medicaid rate. 4. If the claimant obtains medical treatment or services under a letter of protection and the health care provider subsequentlytransfers the rightto receive payment under the letter of protectionto a third party, evidence of the amount the third party paid or agreed to pay the health care providerin exchange for the rightto receive payment pursuant to the letter o f 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 prove the amount of damages for any future medical treatment or to 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 providerscould be satisfied if submitted to such 2 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 eligiblefor such health care coverage, evidence of 120 percent ofthe Medicare reimbursement rate in effect at the time of trial for the medical treatment or services the claimant will receive,or, ifthere isno applicableMedicare rate for a service, 170 percent of the applicablestate Medicaid rate. 3. Any evidence of reasonable future amounts to be billed to the claimant for medically necessary treatment or medically necessary services. 4. Section 30 of HB ' 837 provides that [e]xceptas otherwise expresslyprovided in this act, this act shall apply to causes of action filed after [March 24,2023.]." 5. Section 768.0427(2),Florida Statutes,identifies the types of evidence that may be submitted to the jury to calculate the past and future medical treatment and service expenses in personalinjuryactions. 6. As analyzed below, this Court must apply 768.0427(2) to the instant case because it is proceduralin nature as it regulatesthe discovery and admissibility of evidence in litigation but does not in any way affect Plaintiff's substantive legalrights. MEMORANDUM OF LAW I. A statutorv change mav be applied retroactivelv if it is procedural or remedial in nature. 7. As the Florida Supreme Court explained in Smiley v. State,966 So. 2d 330,334 (Fla.2007), the analysisof whether a change in the statutory law should receive retroactive applicationrequiresa determination of whether the statute sought to be applied retroactively is substantive in nature, or procedural/remedialin nature. Ordinarily,procedural statues apply while substantive measures are presumed retroactively, to Id.;see also Young applyprospectively. v. Altenhaus, 472 So. 2d 1152, 1154 (Fla.1985);Adjeiv. First Cmty. Ins. Co., 352 So. 3d 900,904 3 (Fla.3d DCA 2022). Importantly,there is a presumption in favor of application of proceduralor remedial statutory changes to pending cases, as the Smiley Court noted: Remedial statutes or statutes relatingto remedies or modes ofprocedure, which do not create new or take away vested rights,but only operate in furtherance of the remedy or confirmation do not come within the legal of rightsalreadyexisting, conceptiono f a retrospective law, or the generalrule againstretrospective operation of statutes. Moreover, the "presumption in favor of prospectiveapplicationgenerallydoes not rather,whenever possible,such legislation apply to 'remedial' legislation; should be appliedto pending cases in order to fullyeffectuate the legislation's intended purpose." Smiley,966, So. 2d at 334 (citations omitted).In other words, the Florida Supreme Court has held that remedial or proceduralstatutes apply to pending cases not because they are an exceptionto but because they do not even implicatethe rule. the general rule againstretroactive application, Id.;see also Love v. State,286 So. 3d 177, 189 (Fla.2019) (holdingthat the mere application of a new proceduralstatute in a pending case does not amount to retroactive application). 8 The United States Supreme Court further supported this conclusion in its decision in Landgrq/. "Changes in procedural rules may often be applied in suits arisingbefore their Because rules of procedure regulate enactment without raisingconcerns about retroactivity. secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive.' .. Landgrafv. USI Film Prod., 511 U.S. 244,275 (1994) (emphasis added). 9. New procedural statues can be applied to pending cases because "no one has a vested interest in any given mode of procedure."State v. Kelley,5%% So. 1d 595, 597 (Fla.1 st DCA 1991); accord -Yates v. Wal-Mart Stores, Inc., Case No. 5:10-cv-226/RS-GRJ, 2010 WL 4318795 (N.D. Fla. Oct. 27,2010); Ziccardi v. Strother,570 So. 2d 1319, 1320-21 (Fla.2d DCA 1990)."[S]tatuteswhich relate only to the procedureor remedy are generallyheld applicable to all 4 pending cases." Young v. Altenhaus, 471 So. 2d 1152, 1154 (Fla.1985);"Procedural or remedial enactments may apply without regard to the date of accident,because partiesdo not have a vested rightin any particularprocedure. Russell Corp. v. Jacobs, 782 So. 2d 404,405 (Fla. 1 st DCA 2001). 10. Further, per the court in Pembroke Lakes Mall Ltd. v. McGruder, 137 So. 3d 418 (Fla.4th DCA 2013), procedural changes in the law should be appliedto pending cases: Even in the absence of legislative indication that a statute should apply retroactively, procedural and remedial statutes "should be applied to pending cases in order to fully effectuate the legislation's intended purpose."Arrow Air, Inc. v. Walsh, 645 So.2d 422,424 (Fla.1994) (citation omitted).The generalrule againstretroactive applicationof statutes does not apply to procedural or remedial changes.See Smiley,966 So.2d at 334 (citing Cio' 05 Lakeland V. Catinella,129 So.2d 133, 136 (Fla.1961));State Farm Mut. Auto. Ins. Co. v. Laforet,65% So.2d 55, 61 (Fla.1995) ("The generalrule is that a substantive statute will not operate retrospectively absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate retrospectively." (citations omitted)). . . "[Slubstantive law prescribesduties and rights and procedural law . concerns the means and methods to apply and enforce those duties and Alamo Rent-A-Car, Inc. rights." v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994) (citation omitted). M (emphasis added); see also Kenz v. Miami-Dade County & Unicco Serv. Co., 116 So, 3d 461 (Fla. 3d DCA 2013) (statingthat "[s]ubstantivelaw prescribesduties and rights,whereas procedurallaw concerns the means and methods to enforce those duties and rights."). II. Distinguishing substantive and procedural statues. 11. "Substantive law prescribesduties and rights,and procedural law concerns the means and methods to Ace Disposal v. Holley,668 So. apply and enforce those duties and rights." 2d 645, 646 (Fla.1 st DCA 1996) (quotingAlamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla.1994))."[P]racticeand procedure encompass the court, form, manner, means, method, 5 mode, order,process or steps by which a party enforces substantive rightsor obtains redress for their invasion. Practice and procedure may be described as the machinery of the judicialprocess as opposed to the product thereof." Caple v. Tuttle's Design-Build,Inc.,751 So. 1d 49, 54 (Fla. 2000). 12. of evidence are often considered procedural.See Rules regardingthe admissibility e.g, Kenz v. Miami-Dade CW., 116 So. 3d 461, 466 (Fla.3d DCA 2013) (the change in Section produce evidence of defendant's actual or constructive knowledge 768.0755, requiringplaintiffto is procedural,not substantive); LiA?in v. St. Dep't, 599 So.ld 1353,1355 (Fla. Lucie Cty.Sheriff's 1 st DCA 1992) (statutory amendment that imposed an "actual knowledge" threshold in a Worker's Compensation claim was procedural); Stuart L. Stein,P.A. v. Miller Indus., Inc. (564 So. 2d 539, 540 (Fla.4th DCA 1990) ("increasingthe burden ofproofto a 'clear and convincing' standard did not amount to a substantive change in the statutory scheme" and may be appliedretroactively); Larocca v. State,289 So. 3d 492, 493 (Fla.4th DCA 2020) ("We apply Daubert to the facts of this case because the amendment implementing Daubert is procedural and so the change applies DeLisle retroactively"); v. Crane Co., 258 So. 3d 1219, 1229 (Fla.2018) (findingDaubert proceduralbecause it does not create, define,or regulatea right). III. Section 768.0427 is unequivocally procedural, not substantive, and thus must be applied to this case. 13. In order to prevailin this case, Plaintiff must prove that Defendant failed to keep the premises safe and secure from reasonably foreseeable Nicholson criminal activity. v. StonybrookApartments,LLC, 154 So. 3d 490, 494 (Fla.4th DCA 2015), see also Ameijeiras v. Metro. Dade Cnty.,534 So. 2d 812, 813 (Fla.3d DCA 1988) ("A landowner has a duty to protect an invitee on his premises from a criminal attack that is reasonablyforeseeable."). 6 14. Section 768.0427(2) does not create or change any element of Plaintiff's cause of action. The statute does not create, define,or regulatethe standard of care, duty,breach, or types o f recoverable damages applicableto this case. It does not eliminate any vested rightso f Plaintiff. It operates only in furtherance of the remedy or confirmation of rightsalreadyexistingbecause it changes only the procedures and processes used at trial and specifieswhat evidence the parties may introduce to allow the factfinder to appropriatelydetermine the value of a certain category of Plaintiff's recoverable damages. For these reasons, this Court must apply section 768.0427(2) to the instant case. IV. Other Circuit Judges Have Found in Favor of Defendant's Arguments. 15. While Defendant recognizesthat this Court is not bound by the decisions of other trial courts, other circuit courtjudges,includingjudge's from the instant circuit, have ruled in favor ofthe arguments made by Defendant here. See Sapp, et.al. v. Brooks, et.al.,Case-No. 17-CA-5664, Am. Order Granting Defendant's Motion in Limine (Fla.13th Cir.,HillsboroughCty.,May 19, 2023, Hon. Ann-Leigh Gaylord Moe), a true and correct copy of which is attached hereto as Exhibit A; Mcintosh v. North Broward HospitalDistrict,Case -No. CACE-19-001017, Order on Defendant's Motion to Amend Its Affirmative Defenses (Fla.17th Cir.,Broward Cty.,June 12, 2023, Hon. Mark A. Speiser),a true and correct copy of which is attached hereto as Exhibit B; Schmitt v. Anderson, Case No. CACE-21-020943, Order on Defendant's Motion to Amend Her Affirmative Defenses (Fla.17th Cir.,Broward Cty.,June 9,2023, Hon. Michael Robinson), a true and correct copy ofwhich is attached hereto as Exhibit C; WHEREFORE, Defendant, GG RE HOLLYWOOD BEACH 613 LLC, respectfully requests the Court to issue an order as follows: 7 (1) As to past medical expenses alreadypaid, allow Plaintiff to offer only evidence of the amount paid by any payor, pursuant to Section 768.0427(2)(a); (2) As to past medical expenses not yet paid, allow Defendant to offer any evidence includingbut not limited permittedby Section 768.0427(2)(b), specifically to, evidence of 120 percent ofthe Medicare reimbursement rate in effect on the date of Plaintiff's incurred medical treatment or services,or, ifthere is no applicableMedicare rate for a service,170 state Medicaid rates, and evidence of the amount any third-party percent of the applicable loan services were paid in return for the rightto receive payment under any letters of and protection; (3) As to future medical expenses, allow Defendant to offer any evidence specifically permittedby Section 768.0427(2)(c). DATED this ,th 17 day o f July,2023. ANDERSONGLENN LLP /s/ .John .J. Glenn John J. Glenn, Esquire Florida Bar No.. 957860 Email. jglenn@asglaw.com Amanda N. Rumker, Esquire Florida Bar No.. 125580 Email: arumker@asglaw.com 2650 North MilitaryTrail,Suite 430 Boca Raton, FL 33431 Tel.: (561) 893-9192 Fax: (561) 893-9194 Counsel for Defendant GG Re Hollywood Beach 613 LLC 8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 17??day ofJuly,2023, I electronically filed the foregoing document with the Clerk of the Court using Florida Court's E-Filing Portal and certifythat all counsel of record have been served via transmission of Notice of Electronic Filinggenerated by Florida Court E-FilingPortal or in some other authorized manner for those counsel or partieswho are not authorized to receive Notices of Electronic Filing. electronically /s/ .John .J. Glenn John J. Glenn, Esquire 9 EXHIBIT A IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA GENERAL CIVIL DIVISION SHARON M. SAPP; STACY M. CHANEY; et al., Plaintiffs, CASE NO.: 17-CA-5664 DIVISION: E V JAMES BROOKS; J.B. COACHLINE, INC., Defendants. i 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 representedPlaintiffs Sharon M. Sapp and Stacy M. Chaney. Heather Stover, Esq. and Susan Wilson, Esq. of Ogden & Sullivan representedDefendants James Brooks and J.B. Coachline, Inc. I. Introduction A. The Question Presented The Motion presents a question about the temporal reach of recently-enactedsection 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 to consider issues like this,it can be challengingto reach an unshakeable conviction that no controllingcase could have been overlooked. But no one has produced a case that squarely addresses and disposesof the questionraised in the Motion. The questionis this: if a new statute is (1)proceduralin nature, (2) and the Legislature has provided direction on temporal reach, (3) does the judicialbranch follow its precedent on temporalreach of proceduralstatutes 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 questionsto ask. First,was there clear evidence of legislative If the answer intent to apply it retroactively? is yes, then the second questionis this: is retroactive applicationconstitutionally permissible? The Statute has an effective date o f March 24,2023. And the enactinglegislation says "[e]xcept as otherwise expresslyprovided 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 analysisis different with procedural statutes. The judicialbranch has shown the Legislaturean answer key how it the temporal reach of statutes. The Legislature interprets againstthat background. legislates The answer key is this: There is a makes law for the future. core assumption that the Legislature 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 ofthe two). If it is substantive,there are constitutional reasons why the judicialbranch must tread carefullywhen 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 expresseda clear intent that the law be applied retroactively.If the statute is substantive and there is no clear intent then the basic assumption that the Legislaturewas making law for expressedby the Legislature, the future will apply. If the statute is substantive and there is a clear expressionfrom the Legislaturethat retroactive applicationwas 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 I-275 in Tampa, Florida. When the accident occurred, Plaintiffs Sharon Sapp and Stacy Chaney were passengers on a shuttle bus operatedby 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 arisingfrom the accident. R-ather than rely on Medicare and/or Medicaid, Plaintiffs executed various agreements to pay 3 of 40 providerswho did not bill insurance, subjectto the outcome of this litigation (the "Letters of Protection"). Defendants allegethat third-partyor factoringcompanies have since purchased the rightto 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 1 in Section 6 and providesthat,in pertinentpart, 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 personalinjuryor 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 actuallypaid,regardlessof 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 obligatedto pay the health care provider to satisfythe charges for the claimant's incurred medical treatment or services,plus the 1 As of the rendition ofthis Order, section 768.0427, Fla. Stat. constitutes onlyprimafacie evidence ofthe 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) (discussingthe status of legislationenacted 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. Ifthe claimant has health care coverage but obtains treatment under a letter of protectionor otherwise does not submit charges for any health care provider'smedical treatment or services to health care coverage, evidence of the amount the claimant's health care coverage would pay the health care providerto satisfythe 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 applicablestate Medicaid rate. 4. If the claimant obtains medical treatment or services under a letterof protectionand the health care provider subsequently transfers therightto 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 rightto receivepayment 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 for any such health care coverage, evidence Medicaid, or is eligible 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. Ifthe claimant does not have health care coverage or has health care coverage through Medicare or Medicaid, or is eligiblefor 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 applicablestate 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 provisionin Section 30 that "[e]xceptas otherwise expresslyprovided in this act, this act shall apply to causes of action filed after the effective date of this act." In Section 31, the Act providesthat "[t]hisact shall take effect upon becoming law." E. The Relief Requested in the Motion The ink had not dried on the Governor's signaturebefore this case presentedthe question whether the Statute appliesto pending cases like this one. The Motion seeks to: (1) allow Plaintiffs to offer only evidence of the amount actuallypaid by any payer, pursuant to section 768.0427(2),for past medical expenses alreadypaid; (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-partyloan services were paid in return for the right to receive payment under any letters and o f protection; (3) allow Defendants to offer any evidence specificallypermitted 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 hearingwhere the Motion was argued,other motions same pre-trial in limine were 6 of 40 granted in rulingsfrom 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. II. Analysis Whether it comes about by a change in decisional law, a statute, or administrative a questionfrequentlyarises over whether a new or amended law appliesto certain regulation, case. Nuances abound in the analysisof that question. A. What Do the Words Mean? 1. Temporal Reach "Temporal reach" is a term of art that refers to an analysisthat governs to which period oftime (and therefore,to which cases)a new law applies. 2. Prospective,Retrospective,and Retroactive The three words used to and categorizetemporal reach are prospective,retrospective, retroactive. They are bandied about enough that it is easy to overlook the importance of understandingwhat they reallymean. Defining the terms and appreciatingthe 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 relatingto the future: effective in the future." Webster's Third New Int'l Dictionary 1821 (2002). Black's Law Dictionarydefines a "prospectivelaw" as "[0]ne applicableonly to cases which shall arise after its enactment." Black's Law Dictionary1100 (5thed. 1979). The word "retroactive" means "operative,finding,and taking effect priorto 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 rightsacquiredunder existinglaws, create new obligations,impose a new duty, or attach a new disability in respect to the transactions or considerations alreadypast." Black's Law Dictionary 1184; see also Webster's Third New Int'l Dictionary 1940 (defining "retroactive law" as "a law that operates to make criminal or punishableor in any way expresslyaffects an act done priorto the passing of the law."). means "contemplative of or The word "retrospective" relative to past events" or "affectingthings past." Webster's Third New Int'l Dictionary 1941. A "retrospectivelaw" is one which looks backward or contemplatesthe past; one which is made to affect acts or facts occurring,or rightsaccruing,before it came into force. Every statute which takes away or impairs vested rightsacquired under existinglaws, 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 legaleffect 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 importantto appreciatethat meaning o f the words prospective,retroactive,and retrospective will vary based on whether they are discussed in the context of statutory law or decisional law. i. Statutory Law "As makes law for the future,not the past." a general,almost invariable rule,a legislature 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 LegislativePower of the States of the American Union, 62-63 (1868) (words in a statute should 8 of 40 operate prospectivelyonly "unless the words employed show a clear intention that it should have a retrospective effect."). While in general,the Legislaturemakes law for the future, so long as it meets a constitutional test, the Legislaturecan also make law retroactive. A statute is considered "retroactive" if "it would impair rightsa party possessed when he acted, increase a party's of past conduct, or impose new duties with respect liability to transactions alreadycompleted." Landgraf v. USI Film Prods., 511 U.S. 244, 280 (1997). Retroactive legislation is often enacted in an effort to rightsand burdens imposed in the past" or "impose a "readjust[] new duty or based on past liability 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 'harsh and "particularly is lawful. Id: at 733. retroactive legislation oppressive,"' As an example of explicitly in 1980 an ERISA retroactive legislation, 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 employers" from withdrawing from plans "opportunistic while Congress was consideringthe legislation. Id: at 723-24. While not explicitly meant retroactive,federal legislation to compensate disabled coal miners was considered to have retroactive 4*ct when it requiredemployers to compensate former employees who left their work in the industrybefore the act was passed. Usery v. Turner 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 effect... And Act has some retrospective it may be that the imposed by the Act for liability disabilities suffered by former employees was not anticipated at the time of actual employment. But our cases are clear that readjustingrights and burdens legislation is not unlawful solely 9 of 40 because it upsets otherwise settled expectations. This is true even though the effect of the is to impose a legislation 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 terminologyof "prospective" rulingsin court cases, there is a range of meaning. 381 U.S. 618, 621-22 (1965) (recognizingthat a "purely prospective"decision "does not apply even to the partiesbefore the court.").A purelyprospectiveapplication 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 prospectivein decisional law, though, means that the decision will apply to the case before the court and will also apply to future cases. and "retroactive" are generallyused interchangeably. In Florida,the terms "retrospective" 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. or "retroactive" applicationof decisional law will often involve But a "retrospective" disturbinga settled outcome. For example, in Linkletter, the Supreme Court considered whether its priordecision in Mapp v. Ohio operatedretrospectively upon cases finallydecided in the periodpriorto Mapn. Id= Mapn held that exclusion of evidence seized in violation of the search and seizure provisionsof the Fourth Amendment was requiredof the States by the Due Process Clause of the Fourteenth Amendment. Id. at 619. Victor Linkletter was convicted