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Filing # 196709752 E-Filed 04/22/2024 02:42:21 PM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR ORANGE COUNTY, FLORIDA
CASE NO. 2017-CA-004662-0
BELINDHA RUSSELL, as the Personal
Representative of the Estate of ROLAND L.
CAJUSTE (deceased),
Plaintiff,
VS.
ADVENTIST HEALTH SYSTEM/SUNBELT,
INC. d/b/a FLORIDA HOSPITAL EAST d/b/a
FLORIDA HOSPITAL ORLANDO; FLORIDA
HOSPITAL MEDICAL GROUP, INC., d/b/a
RADIOLOGY SPECIALISTS OF FLORIDA;
PEDIATRIC CARE GROUP, P.A.; FLORIDA
EMERGENCY PHYSICIANS; KANG &
ASSOCIATES, M.D., INC.; ALFREDO TIRADO
GONZALEZ, M.D.; MIGUEL A. ACEVEDO-
SEGUI, M.D.; KIMBERLY R. BUFFKIN, M.D.;
DENNIS A. HERNANDEZ, M.D.; DOUGLAS M.
HAUS, M.D.; LUIS R. CAMPIS VAZQUEZ, M.D.;
KATARINA M. NAMMOUR, ARNP; and
MIGUEL ANGEL SILVA, M.D.,
Defendants.
/
PLAINTIFFSMOTION FOR RECONSIDERATION AND ALTERNATIVELY,
FOR RELIEF CONSISTENT WITH STATUTORY EXCEPTION
Plaintiff, BELINDHA RUSSELL, as the Personal Representative of the Estate of
ROLAND L. CAJUSTE (deceased), pursuant to Circuit Civil Division 33 Procedures, requests
reconsideration of this Court's Order Denying Plaintiff s Motion for Summary Judgment and
Granting in Part/Denying in Part Defendants' Motions for Summary Judgment, dated February 2,
2024, and states:
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Introduction
On February 2, 2024, this Court denied Plaintiff s Motion for Partial Summary Judgment
and granted DefendantsMotions for Partial Summary Judgment to the extent that it found that
section 766.118(6), Florida Statutes (2015), capping the noneconomic damages of Medicaid
recipients, constitutional and compliant with the Florida Constitution's Equal Protection Clause.
This Court found that, because it was "fairly debatable' that capping Medicaid recipients'
noneconomic damages might incentivize more physicians to accept and treat patients,
section 766.118(6) satisfies rational basis review.
Reconsideration is appropriate and necessary on multiple grounds. First, after this Court's
ruling, two Florida Circuit Court judges have ruled that section 766.118(6) is unconstitutional. In
the interests of predictability and consistency in the law, Plaintiff seeks to present these persuasive
rulings for this Court's reconsideration. The newest orders represent a widening chasm within
Florida's circuit courts and reveal a growing consistency on this issue to dispense fair justice all
Floridians who suffer from medical malpractice, including Medicaid recipients.
Second, it appears that this Court may have overlooked Dixon v. United States, No. 15-
23502-Civ-Scola, 2017 WL 1543191 (S.D. Fla. Apr. 28, 2017), aff'd in part and rev'd in part on
other grounds, 900 F.3d 1257 (11th Cir. 2018). Although Dixon is not binding, its status as the
only federal decision addressing the constitutionality of section 766.118(6), prepared by the highly
esteemed Judge Robert Scola, renders it strongly persuasive.
Third, due to argument advanced by Defendants, the Court may have misapprehended the
rational basis test as set forth in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), and
North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017). It is unsurprising that, at
the hearing on the competing Motions for Summary Judgment, all parties overlooked important
2
nuances contained within the McCall and Kalitan decisions. After all, together, McCall and
Kalitan comprise forty-two pages of legal analysis.
Initially, the analysis used in McCall was not an impermissible alteration or shift in
Florida's rational basis test, but instead, as Justice Lewis noted, part of the Court's judicial duty as
an
integral part of determining the legitimacy of the Legislature's stated public purpose. Moreover,
this Court relied on Justice Pariente as having disagreed with Justice Lewis in McCall. Importantly,
however, even Justice Pariente recognized 1) that statutory caps are unconstitutional as applied to
wrongful death actions when applied without regard to the number of claimants entitled to
recovery; and 2) even if a crisis existed when section 766.118 was enacted, a crisis is not a
permanent condition, allowing courts to examine a
subsequent change in conditions to evaluate
whether the Legislature's conclusions remain valid.
Further, this Court read the distribution of opinions in McCall as most of the Supreme
Court disagreeing "that courts may engage in such an independent analysis as Justice Lewis did."
(Order, at 8). Although only two justices signed Justice Lewisopinion in McCall, a majority of
justices agreed that courts can consider whether circumstances that justified a law when it was
passed no longer exist. Similarly, this Court overlooked that Kalitan, signed by a four-justice
majority of the Supreme Court, followed McCall in confirming the lack of a medical malpractice
crisis causing the caps to become unconstitutional even if they were constitutional when enacted.
This Court is bound by the conclusions of a majority of the justices in McCall as well as Kalitan,
not the Third District's criticism of McCall in Membreno & Florida Association of Vendors, Inc.
v. City of Hialeah, 188 So. 3d 13 (Fla. 3d DCA 2016) (which pre-dated Kalitan and thus has
dubious precedential value).
3
As numerous Florida trial courts have recognized, capping Medicaid recipientsnon-
economic damages without regard to the number of survivors is not rationally related to a
legitimate public purpose. The legitimacy of the Legislature's stated purpose to incentivize more
physicians to treat Medicaid recipients is undermined by the Legislature's repeated rejection of
Medicaid expansionism. For the same reason, even if "fairly debatable" that a crisis was
coming in 2011 due to an expected increase of Medicaid recipients flowing from ACA, those
concerns do not exist in 2024. There is no longer a tax penalty for noncompliance with the federal
mandate. In some years after section 766.118(6) passed, enrollment declined. Most
importantly, in the past year, 1.3 million Floridians have had their eligibility eliminated
by the state.
Beyond the statute's facial unconstitutionality, Plaintiff also asks this Court to re-examine
its view that Plaintiff s affidavits concerning Roland's status failed to reveal a genuine
dispute of material fact. Plaintiff submitted evidence that the Florida Casualty Recovery
Program had paid $0 for Roland's incident dates. In granting summaiy judgment on this issue, the
Court incorrectly held a trial by affidavits and exercised the jury function of determining
credibility, even though Plaintiff s evidence was not blatantly contradicted by the record.
Finally, if this Court declines to revisit and vacate its February 2, 2024 Order, Plaintiff
requests an order granting Plaintiff s Motion for Leave to File Reply to conform the pleadings to
its ruling that a genuine dispute of material fact remains as to whether Plaintiff can overcome the
caps with proof that Defendants acted in a wrongful manner.
Standard for Reconsideration
Florida law affords trial courts broad discretion and the inherent authority to reconsider
interlocutory rulings for any reason. Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998) (noting
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a trial court has the "inherent authority to reconsider and, if deemed appropriate, alter or retract
any of its nonfinal rulings prior to entry of final judgment or order terminating an action....")
Non-final "orders are subject to judgesreconsideration sua sponte, even to the point of
withdrawing them completely or reversing the initial ruling." Campos v. Campos, 230 So. 3d 553,
556 (Fla. 1st DCA 2017).
In VLX Properties, Inc. v. S. States Util., Inc., 792 So. 2d 504, 509 (Fla. 5th DCA 2001)
(en banc), the Fifth District Court of Appeal reminded all courts to embrace the opportunity to
reach the right decision. See id C[N]either precedent (nor law of the case) should be used to
institutionalize or justify error.... Neither this Court nor the law is served by our adhering to a
previous position which we now believe to be wrong.")
Argument in Support of Reconsideration
A. Subsequent Florida Circuit Court Rulings After this Court's Order Have
Determined Section 766.118(6) Unconstitutional as Violative of Equal Protection
As an initial matter, Plaintiff brings to this Court's attention that two Florida Circuit Court
judges have held section 766.118(6) unconstitutional since this Court's ruling.
First, four days after this Court's Order, in Persia Peters v. Orange Park Medical Center,
Inc., No. 16-2020-CA-005673 (Fla. 4th Jud. Cir.), attached as Exhibit A, Judge Waddell Wallace,
III of Duval County held that section 766.118(6) violates Equal Protection for three reasons:
This Court is obviously bound by the decisions of the Supreme Court of
Florida. Although McCall and Broward did not directly address Section
766.118(6), the supreme court announced a general principle in those
decisions that caps which "discriminate between classes of medical
malpractice victims" such that "claimants with little noneconomic
damages can be awarded all of their damages, in contrast to those
claimants whose noneconomic damages are deemed to exceed the level
to which the caps apply," are "rendered unconstitutional by McCall."
Kalitan, 219 So. 3d at 58. Section 766.118(6), like the materially
indistinguishable Sections 766.118(2) and (3), arbitrarily discriminates
between Medicaid recipients "with little noneconomic damages" and
Medicaid recipients "whose noneconomic damages are deemed to
exceed the level to which the caps apply." Id. Accordingly, Section
766.118(6) is "rendered unconstitutional by McCall." Id
Section 766.118(6) also violates the Equal Protection Clause of the
Florida Constitution under McCall and Kalitan because its caps are not
rationally related to the Legislature's stated purpose. Section
766.118(6), like Sections 766.118(2) and (3), has "no mechanism in
place to assure that savings are passed on from the insurance companies
to the doctors in accordance with the stated purpose of alleviating the
rising premiums." Id at 59. There is nothing stopping insurance
companies from keeping the savings from Section 766.118(6) while
continuing to charge doctors higher insurance premiums. This provides
a separate basis for declaring Section 766.118(6) unconstitutional under
the Florida Constitution's Equal Protection Clause. Id
Additionally, the Florida Legislature has consistently rejected
expanding following passage of the Affordable Care Act ("the
ACA"). The Legislature's decision not to expand Medicaid in the
fourteen years since Congress passed the ACA means, at a minimum,
that the purported crisis has long since abated. As "[a] law
depending upon the existence of an emergency or other state of facts to
uphold it may cease to operate if the emergency ceases," Chastleton,
264 U.S. at 547-48, the Court "conclude[s] that no rational basis exists
to justify continued application of the noneconomic damages cap of
section 766.118." McCall, 134 So. 3d at 913.
Id (emphasis added) (selected citations omitted).
Second, on March 22, 2024, in Rodriguez v. Florida Woman Care, LLC, No. 2022-003400-
CA-01 (Fla. 1 1 th Jud. Cir.), attached as Exhibit B, Judge Tanya Brinkley of Miami-Dade County
determined that section 766.118(6) is unconstitutional:
The Court has also reviewed [McCall and Kalitan] which found other
subsections of the same statute to be unconstitutional. The Court finds
that the Supreme Court's analyses in these cases are similarly applicable
to the instant question regarding the constitutionality of subsection 6 of
the statute.
The Court's duty to construe a statute to uphold its constitutionality is
circumscribed by the Constitutions of the State of Florida and United
States, as well as precedent addressing the constitutionality of the
subject statute. Here, the Florida Supreme Court in [McCall] and the
Fourth District Court of Appeal in [Kalitan] have both held "What the
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caps in section 766.118 violate equal protection under the rational basis
test because the arbitrary reduction of compensation without regard to
the severity of the injury does not bear a rational relationship to the
Legislature's stated interest in addressing the medical malpractice
crisis."
Defendants argue[] and the Court acknowledges that McCall and
Kalitan do not expressly address 766.118(6), however, the
unconstitutional provisions of the statute cannot be separated from
subsection 6, the legislative purpose expressed cannot be accomplished
independently of the portions of the statute which are void, the caps on
noneconomic damages in personal injury cases involving Medicaid and
non-Medicaid recipients are inseparable in substance and the act is
incomplete after the invalid provisions are stricken. See Cramp v. Board
of Public Instruction of Orange County, 137 So. 2d 828 (Fla. 1962).
Based on the record and the arguments made before this Court and
adhering to McCall and Kalitan, the section 766.118(6) cap on Medicaid
recipient damages is unconstitutional as it violates equal protection.
The Court finds that section 766.118(6) of the Florida Statutes
unconstitutionally discriminates based on one's status, for
reasons which do not satisfy rational basis review [the Legislature's
consistent rejection of Medicaid expansionism and lack of a crisis to
justify the arbitrary caps].
Id. (selected citation omitted).
As evidenced by Peters and Rodriguez, the chasm amongst trial courts on this issue—with
to undersigned counsel's knowledge, more courts holding section 766.118(6) unconstitutional than
constitutional—continues to widen. This is continuing to create an uneven legal landscape in
which medical malpractice victims who happen to be Medicaid recipients will be bound by the
arbitrary caps in some cases, while other cases where the statute has been held unconstitutional
will not be. Systemically, this inconsistency negatively impacts the equal distribution of justice
throughout Florida. This inequity may very well last for years until the Florida Supreme Court can
opine, in an appropriately postured case, whether section 766.118(6) is or is not constitutional.
Thus, alone, the importance of consistency in the law warrants the Court devoting additional time
to this issue and re-examining its Order.
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B. This Court Did Not Cite Dixon v. United States
Next, the Court's Order does not cite Dixon v. United States, No. 15-23502-Civ-Scola,
2017 WL 1543191 (S.D. Fla. Apr. 28, 2017), affd in part and rev 'd in part on other grounds, 900
F.3d 1257 (11th Cir. 2018). Dixon is persuasive because it was decided by the esteemed Judge
Robert Scola and apart from the numerous state court orders, it is the only source addressing the
constitutionality of section 766.118(6). Moreover, Dixon appropriately looked to its prediction of
how the Florida Supreme Court would be likely to rule, if faced with an actual case or controversy
calling into question section 766.118(6)s constitutionality.
In Dixon, after analyzing McCall, the Fourth District's decision in Kalitan, and the Second
District's decision in Port Charlotte, Judge Scola determined that the sound reasoning in these
cases self-evidently applied to the caps, which are in many ways conceptually similar to
the caps in sections 766.118(2) and (3):
Therefore, although no Florida court has directly addressed the cap for
Medicaid recipients under § 766.118(6), Florida courts have broadly
applied McCall to hold that the statutory caps in § 766.118 are
unconstitutional with respect to personal injury actions. The Court
concludes that McCall and its progeny apply equally to subsection 6
(although not expressly directed to that subsection) because it, like
subsections 1, 2 and 3, limits damages "arbitrarily [which] diminishes
compensation for legally cognizable claims," McCall, 134 So. 3d at 901,
and denies plaintiffs equal protection. For the same reasons already set
forth in McCall and its progeny, the Court determines that Florida courts
would hold this subsection unconstitutional as well. Therefore, the
statutory caps do not apply.
Id.
Because this Court may have overlooked Dixon, reconsideration is warranted.
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C. McCall and Kalitan Require this Court to Evaluate the Available Data to
Consider the Legitimacy of the Stated Legislative Purpose and to Determine the
Continued Existence of a Crisis or Emergency for Rational Basis Purposes
The Court's application of the rational basis test rests upon disagreement with the way
former Florida Supreme Court Justice Fred Lewis, in McCall, "engage[d] in ... an independent
analysis" of data supporting the Legislature's stated justification for enacting the noneconomic
damage caps of sections 766.118(2) and (3)—the existence of a medical malpractice crisis.
However, the Court overlooked several facets of both McCall and Kalitan that both allow for the
judiciary's consideration of data when conducting rational basis review and confirm the facial
unconstitutionality of section 766.118(6)s caps under the Equal Protection Clause.
At the outset, this Court correctly recognized that McCall and Kalitan must "guide this
Court's decision." (Order, at 7). Plaintiff agrees—and that is precisely why these nuanced opinions
deserve the Court's additional attention. Together, they comprise forty-two pages of legal analysis,
and all parties, including Plaintiff, omitted discussion of several important details at the hearing.
First, JusticeLewis' approach in McCall does not rewrite the rational basis test, but
rather, his permission for courts to consider the truth of "factors and circumstances" surrounding
legislation is necessary to give meaning to the rational basis test and ensure that courts do not
inadvertently act as the Legislature's rubber stamp when applying it. Justice Lewis explained that
his analysis of data supporting whether a medical malpractice crisis existed, and continued to exist,
went to the legitimacy of the Legislature's stated purpose:
[U]nder Warren, and contrary to the view of the concurring in result
opinion, both prongs of the rational basis test must be evaluated to
determine the constitutionality of a statute.
Despite this precedent, the concurring in result opinion loudly proclaims
that the full rational basis test be ignored and the legitimacy of the
purpose for the cap not be addressed as part of our constitutional
analysis. However, we would abandon our obligation under Warren
....
9
were we to simply rubber stamp the Legislature's asserted justification
for the cap and fail to consider the existing factors and circumstances
...
to determine whether there is legitimacy to that justification. We decline
to abdicate our responsibility under the law and, therefore, address
whether the cap "serves a legitimate governmental purpose pursuant to
the third prong of Warren, 899 So. 2d at 1095.
McCall, 134 So. 3d at 905-06. It is important to note that, as this was Justice Lewisrationale for
reviewing data, he did not purport to "overturn Florida's long-standing rational basis test." (Order,
at 8). By tying his assessment of facts to an assessment of legitimacy, Justice Lewis' analysis did
not run afoul of separation of powers.
Second, this Court relied on Justice Pariente (joined by Justices Quince and Perry) as
having "disagreed with Justice Lewis' application of the rational basis test." Id. While such
disagreement was present in some respects, the justices agreed on other important respects,
particularly the duty to consider today's status of whether a crisis exists or not.
Initially, Justice Pariente agreed with Justice Lewis that under Florida law, "aggregate caps
or limitations on noneconomic damages violate equal protection guarantees under the Florida
Constitution when applied without regard to the number of claimants entitled to recovery," and
that this "inherently discriminatory action and resulting invidious discrimination do not pass
constitutional muster." McCall, 134 So. 3d at 919 (Pariente, J., concurring) (quoting St. Mary's
Hosp., Inc. v. Phillipe, 769 So. 2d 961, 971 (Fla. 2000)). Thus,five Florida Supreme Court justices
reached this conclusion, which equally applies to the caps of section 766.118(6). Undoubtedly, the
caps are still "aggregate caps ... on noneconomic damages" that are to be "applied
without regard to the number of claimants ...." Id. Here, this Court did not reference this important
agreement by Justice Pariente with the McCall plurality.
Further, Justice Pariente agreed with Justice Lewis' review of data to the extent of
determining whether a crisis continued to exist. Justice Pariente wrote:
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Finally, I strongly agree with the plurality that "even if a 'crisisexisted
when section 766.118 was enacted, a crisis is not a permanent
condition." As I stated in my dissent in Mizrahi v. North Miami Medical
Center, Ltd, 761 So. 2d 1040 (Fla. 2000):
There is no indication that the past medical malpractice crisis
continues into the present. If the medical malpractice crisis does
not continue into the present, I fail to see how a past crisis can
justify the permanent exclusion of an entire class of victims from
seeking compensation for pain and suffering damages due to the
wrongful death of their parents as a result of medical
malpractice.
Indeed, it is a "settled principle of constitutional law" that
although a statute is constitutionally valid when enacted, that
statute may become constitutionally invalid due to changes in
the conditions to which the statute applies. Accordingly, while it
is not our role to reexamine legislative fact-finding, we also need
not blindly accept the Legislature's conclusions, especially
when such conclusions may no longer be valid due to changed
conditions.
McCall, 134 So. 3d at 920 (emphasis in original) (citations omitted). Thus, similarly, McCall tells
us that it was the judgment offive Florida Supreme Court justices, not two, that courts can examine
data for the limited purpose of determining whether a particular situation, that may have supported
contemporaneous legislation, continued to exist in the future. As there, a
"past crisis"—the
Legislature's fear of increased enrollment in 2011 due to the Affordable Care Act—
cannot justify the egregious caps on severely injured persons' noneconomic damages if it does not
continue into the present.
Third, in terms of rejecting Justice Lewis' approach, this Court overlooked Kalitan. In
Kalitan, Justices Lewis, Pariente, Labarga, and Quince all signed the Court's per curiam opinion.
(The Court's Order does not mention this and no counsel pointed it out for the Court's focus and
attention.). Thus, a majority of the Court approved the following statement of the Fourth District
that equally applies as a matter of law to the caps of section 766.118(6):
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So long as the caps discriminate between classes of medical malpractice
victims, as they do in the personal injury context (where the claimants
with little noneconomic damage can be awarded all of their damages, in
contrast to those claimants whose noneconomic damages are deemed to
exceed the level to which the caps apply), they are rendered
unconstitutional by McCall.
Kalitan, 219 So. 3d at 58 (quoting Kalitan v. N. Broward Hosp. Dist., 174 So. 3d 403, 413 (Fla.
4th DCA 2015).1
Moreover, at page 59 of Kalitan, a majority of the Court endorsed Justice Lewisand
Justice Pariente's view that courts can consider a change in future conditions that may render a
statute unconstitutional, even if it was constitutional based on an emergency or certain set of facts
that existed at the time it was passed:
Furthermore, in McCall, we determined that even if the damages cap
were rationally related to a legitimate government purpose when the
statute was enacted, there is no evidence of a continuing crisis that
would justify the arbitrary application of the statutory cap. Both the
plurality and concurring in result opinions recognized that "[a] statute
may be constitutionally valid when enacted but may become
constitutionally invalid because of changes in the conditions to which
the statute applies. Moreover, the plurality opinion observed that "[a]
law depending upon the existence of an emergency or other certain state
of facts to uphold it may cease to operate if the emergency ceases or the
facts change even though valid when passed." The plurality opinion
explained: "even if there had been a medical malpractice crisis in
Florida at the turn of the century, the current data reflects that it has
subsided. No rational basis currently exists (if it ever existed) between
the cap imposed by section 766.118 and any legitimate state purpose."
The concurring in result opinion agreed that there is no evidence of a
continuing medical malpractice crisis that would justify the arbitrary
reduction of damages. Consequently, we approve the Fouth District's
conclusion: "Because addressing the medical malpractice crisis was the
Legislature's stated objective when passing section 766.118, if the
objective no longer exists, then there is no longer a 'legitimate state
objective' which the caps could 'rationally and reasonably relate.'"
1
Section 766.118(6)'s caps in fact discriminate "between classes of medical malpractice victims"
in two ways: As between Medicaid recipients who may receive all their damages and those who
will be capped, and as between Medicaid recipients and non-Medicaid recipients who are not
capped pursuant to McCall and Kalitan.
12
Id at 59 (citations omitted).
Plaintiff recognizes that McCall gave rise to some debate regarding the appropriate scope
of rational basis review, as this Court's reliance on Membreno & Florida Association of vendors,
Inc. v. City of Hialeah, 188 So. 3d 13 (Fla. 3d DCA 2016), demonstrates. However, this Court is
bound by McCall and Kalitan, not the 2016 Membreno Third District decision. Unlike McCall and
Kalitan, Membreno was not a caps decision, but involved the constitutionality of a zoning
ordinance for street vendors. Further, Membreno pre-dated Kalitan, in which, again, a majority of
the Florida Supreme Court confirmed that discriminatory caps of section 766.118 are
unconstitutional, and that consideration of whether an emergency, or analogous state of facts
supporting legislation when it was passed, continues to exist, is not only permissible, but the duty
of the Court.
D. The Alleged "Legitimate Governmental Interesr for the Caps was the Affordable
Care Act which Florida Has Rejected
On the merits, the Court cited Plaintiff s point that "because the Legislature subsequently
declined to expand Medicaid, the 'crisisnever came to fruition," and rejected it given Membreno's
statement that whether the statutory scheme will promote the legislative objective is not
dispositive. (Order, at 10). However, in light of the foregoing clarification that both McCall and
Kalitan not only permit but require analysis of whether a set of facts that might conceivably have
justified legislation continues to exist into the future, revisiting the facts regarding the Legislature's
repeated rejection of Medicaid expansionism is necessary and appropriate. Respectfully, the
Court's current Order includes no analysis of this vital constitutional analysis.
As Plaintiff pointed out, Florida is out of only fourteen states that have declined to expand
Medicaid. Alison Yaeger, Connecting the Dots: How Expansion will Improve Public
Health, Increase Financial Stability, and Lessen Disparities in South Florida, Fla. Health Justice
13
Project (updated July 2022), available at Exhibit C to Plaintiff s December 14, 2023 Omnibus
Response; see also Cianci & Harmatz, Opposition, Inaction, and Obstruction: A History of
Florida's Failure to Pass Expansion (July 2022 Update), available at Exhibit D to
Omnibus Response. Not only that, in 2023, hundreds of thousands of Floridians lost their
eligibility. See Omnibus Response, at 11-12.
As of August 2023, about 400,000 had been terminated from See Joe Mario
Pederson, Central Florida Public Media, More Than Halfof Medicaid Recipients Terminated May
Still Qualifr, State Data Shows (Aug. 17, 2023), available at https://www.wusf. org/health-news-
florida/2023-08-17/more-than-half-medicaid-recipients-terminated-may-qualify-state-data-
shows, attached as Exhibit C. As of November 2023, the media reported, "[n]early a
quarter of a
million children were ineligible for Medicaid as the state is about halfway through its
redetermination process, in which the Department of Children and Family Services is reevaluating
eligibility for 5.5 million Floridians. ...
During the Senate appropriations meeting last month said
the unwinding process was going well."). See Joe Mario Pederson, Central Florida Public Media,
Thousands of Children in Florida are Without Coverage Afier Unwinding (Nov. 13,
2023), available at https ://www.wusf. org/health-news-florida/2023-11 -13/thousands-children-
florida-without-coverage-medicaid-unwinding, attached as Exhibit D. As of April 12, 2024, over
1.3 million Floridians have been deleted from the rolls. Caroline Catherman, Orlando
Sentinel, After Losing Parents of Florida's Sickest Kids are in Limbo (Apr. 12, 2024),
available at
attached as Exhibit E (Over the last year, Florida has dropped over 1.3 million people, including
460,000 children, from its state Medicaid program after the end of a pandemic-era policy that
banned states from removing participants who became ineligible."). AHCA's most recent report
14
shows that between September 2023 and February 2024, Florida's enrollment decreased
by 355,526 people. Florida Agency for Health Care Administration, Medicaid Monthly Enrollment
Report (Feb. 2024), available at https://ahca.myflorida.com/medicaid/medicaid-finance-and-
analytics/medicaid-data-analytics/medicaid-monthly-enrollment-report (last visited Apr. 12,
2024), attached as Exhibit F.
Florida's complete refusal to pass, and in many cases, even to debate, any
expansion bills, and now Florida's striking the eligibility of over 1 million of its citizens
offers this Court a quintessential example of a "changen in the conditions to which the statute
applies" or put another way, a changed set of facts, even if, as the Court believes, a "certain state
of facts" existed in 2011 that justified the caps. Kalitan, 219 So. 3d at 59. Just as there was "no
evidence of a continuing medical malpractice crisis" in 2017 when the Florida Supreme Court
decided Kalitan, even accepting this Court's conclusion as true that fear of Medicaid expansion
imbued section 766.118(6) with a rational basis, there is zero evidence now of an increase (or even
a stable level) of Medicaid expansion where the government has stricken over 1 million
patients from the rolls and its redetermination program remains in force, let alone evidence now
that caps are likely to incentivize physicians to treat patients.
This Court found it "fairly debatable" whether the methods adopted in the Caps
law served a legitimate purpose and that "there exists a good faith conflict over facts, some of
which support the legislative finding." (Order, at 10-11). There is a genuine and important need
here for this Court to reconsider whether such a
"good faith conflict," if it ever existed, still exists
in 2024, given the Legislature's repeated rejection of Medicaid expansion every year from 2013
to 2021 (see Omnibus Response, at 11), and the government's dropping of
eligibility redetermination efforts are completed. In 2024, it is not good faith to have passed caps
15
based on an expectation that "[t]he existence of the federal mandate to purchase insurance will
result in many eligibles coming forward and enrolling in ....," there is no longer a tax
penalty for noncompliance with the federal mandate as of 2019,2 the Legislature never passed
expansion, and Florida is now cutting people from the rolls by the hundreds
of thousands as no longer constrained by the hold in place during the COVID-19 pandemic. Cf
Final Bill Analysis, attached as Exhibit A to Omnibus Response.
To be sure, Plaintiff submits that a good faith factual conflict did not exist in 2011, and
Plaintiff disagrees that the validity of the Legislature's method of capping its most vulnerable
residentsnoneconomic damages could be "fairly debated" to serve the stated purpose. Indeed, the
Legislature was likely aware that it never intended to pass expansion. Regardless,
however, what the Court has overlooked is its need, recognized by a majority of the Florida
Supreme Court in both McCall and Kalitan, to consider data that may render a law unconstitutional
in the future even if constitutional when passed. Courts cannot remain silent in the face of
unconstitutional legislation and yield undue deference to the stated legislative objective, where, as
here, the circumstances on which that objective is premised no longer exist.
E. Plaintiff s Affidavits Revealed a Genuine Dispute of Material Fact as to
Whether Roland was a Medicaid Recipient at the time of the Malpractice
Finally, Plaintiff requests this Court reconsider its determination that there was no genuine
dispute of material fact regarding Roland's status as a Medicaid recipient. While the Court
observed that Ms. Russell's affidavit averring that Roland had health insurance through United
Healthcare did not necessarily conflict with evidence that United Healthcare administered
Roland's Medicaid plan, the Court also correctly noted that Plaintiff submitted "a letter from the
2
Norris, Does the IRS Still Enforce the Individual Mandate?, HealthInsurance.org (Jan. 12,
See Louise
2024), available at https://www.healthinsurance.org/faqs/does-the-presidents-executive-order-mean-the-
irs-wont-enforce-the-individual-mandate-penalty/ (last visited Apr. 12, 2024), attached as Exhibit G.
16
Florida Casualty Recovery Program show[ing] that did not make any
payments related to Roland's case." (Order, at 4). Respectfully, the Court erred in determining that
this evidence did no more than offer the "mere possibility" that Roland was not a Medicaid
recipient.
The Order mentioned supra, in Peters, provides a
roadmap for this Court to follow. In
Peters, Judge Wallace reasoned:
Plaintiff presented competent evidence, namely deposition testimony and
billing records, that she was insured by United Healthcare, not
when the at-issue medical services were provided. While Peters and Hagan
did enroll in after the alleged malpractice, Section 766.118(6)
plainly applies only to individuals who were Medicaid recipients at the time
of the malpractice. Accordingly, partial summary judgment for the
Defendants is inappropriate because the evidence, when viewed in the light
most favorable to the Plaintiff, reveals that Plaintiff was not a Medicaid
recipient at the time of the medical malpractice.
Peters, No. 16-2020-CA-005673.
Here, under cover of the Affidavit of Graciela Perez, attached as Exhibit H, Plaintiff
submitted correspondence dated June 10, 2017, demonstrating that Unitedflealthcare Community
Plan had paid $14,132.17 for medical expense benefits. Moreover, on August 5, 2021, the Florida
Casualty Program prepared correspondence stating:
We have recently reviewed our records and have determined there have
not been any payments related to the above date of incident at this time.
This is our final review of the paid claims and the case regarding this
date of incident is now closed.
Exhibit A-2 to Exhibit H.
The Court determined that, based on Defendantsevidence, "a reasonable jury could only
find that Roland was a Medicaid recipient." (Order, at 5). However, viewing the evidence most
favorable to Roland, a reasonable jury could also fully credit Roland's evidence and disregard
Defendants' evidence, and thus determine that Roland was not a Medicaid recipient at the time of
17
the alleged malpractice. In finding no genuine dispute of material fact, the Court incorrectly held
a trial by affidavit. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 176 (1970) ("The
advantages of trial before a live jury with live witnesses, and all the possibilities of considering
the human factors, should not be eliminated by substituting trial by affidavit and the sterile
bareness of summary judgment. ... Trial by affidavit is not substitute for trial by jury which so
long has been the hallmark of 'even handed justice.) (e.s.).
Under Florida's summary judgment standard, it is "[o]nly when the record evidence
blatantly contradicts a litigant's version of the facts [that] a court will be allowed to weigh
conflicting evidence or determine the credibility of a witness." Gracia v. Security First Ins. Co.,
347 So. 3d 479, 482 n.1 (Fla. 5th DCA 2022). That standard was not met here: It cannot be said
that the record "blatantly" contradicted Plaintiff s assertion of Roland's status in
December 2015.
F. Alternative to Granting Rehearing and Vacatur of its Finding of Constitutionality,
Plaintiff Requests the Court to Allow Amendment to Conform the Status of the
Pleadings to the Court's Ruling.
Should this Court not grant rehearing and vacate its finding of constitutionality, Plaintiff
requests permission to amend the pleadings, in accordance with Plaintiff s previously filed
Motions, so that Plaintiff s "wrongful mannee rebuttal to the capsimposition is properly postured
for trial. As a reminder, in Section V of its Order, this Court determined that a genuine dispute of
material fact remained as to whether Defendants acted in "bad faith or with malicious purpose or
in a manner exhibiting wanton and willful disregard of human rights [or] safety ...." in their
treatment of Roland.
Specifically, on March 2, 2022, Plaintiff filed an Amended Motion for Leave to Amend
Complaint. (it looks like (at least) one of the Defendants filed a Response saying no objection to
18
the amendment. Of note, on March 21, 2023, Pediatric Care Group and Dr. Silva filed a Response
to that Motion, stating those Defendants had no objection to the requested amendment.
Superseding the Amended Motion for Leave to Amend, on February 23, 2024, Plaintiff
moved for leave to file a Reply to DefendantsAffirmative Defenses to the Amended Complaint.
Plaintiff s proposed Reply sets forth that, "[i]n light of the Court's ruling on February 2, 2024 that
subsection (6) is constitutional, Plaintiff will meet her statutory burden by proving with clear and
convincing evidence that Defendants acted in a manner exhibiting wanton and willful disregard of
the human rights and safety of the minor," Roland.
Therefore, Plaintiff alternatively requests this Court to enter an order granting Plaintiffs'
February 23, 2024 Motion for Leave to File Reply.
Conclusion
Reconsideration is appropriate on threshold grounds that additional trial judges have held
section 766.118(6) unconstitutional since this Court's ruling, and the Court's Order appears to
have overlooked Dixon. Most importantly, this Court appears to have misapprehended that even
Justice Pariente in McCall (and thus, a
majority of the Supreme Court) determined the caps'
violation of equal protection in multiple-claimant scenarios rendered them unconstitutional and
that courts are empowered to consider available data at least to evaluate whether circumstances
that may have rendered a law rationally related to a legitimate public purpose when passed have
changed. So too, a four-justice majority of the Court in Kalitan confirm this is the law of the land.
Here, a
quintessential example of changed circumstances exists because the Legislature never
passed expansion, there is essentially no longer a federal mandate, and Florida's
executive branch has purged over a million Floridians from the rolls in the last year.
Under these circumstances, the conclusion that the Legislature may continue to constitutionally
Preview
Filing # 196709752 E-Filed 04/22/2024 02:42:21 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CASE NO. 2017-CA-004662-0 BELINDHA RUSSELL, as the Personal Representative of the Estate of ROLAND L. CAJUSTE (deceased), Plaintiff, VS. ADVENTIST HEALTH SYSTEM/SUNBELT, INC. d/b/a FLORIDA HOSPITAL EAST d/b/a FLORIDA HOSPITAL ORLANDO; FLORIDA HOSPITAL MEDICAL GROUP, INC., d/b/a RADIOLOGY SPECIALISTS OF FLORIDA; PEDIATRIC CARE GROUP, P.A.; FLORIDA EMERGENCY PHYSICIANS; KANG & ASSOCIATES, M.D., INC.; ALFREDO TIRADO GONZALEZ, M.D.; MIGUEL A. ACEVEDO- SEGUI, M.D.; KIMBERLY R. BUFFKIN, M.D.; DENNIS A. HERNANDEZ, M.D.; DOUGLAS M. HAUS, M.D.; LUIS R. CAMPIS VAZQUEZ, M.D.; KATARINA M. NAMMOUR, ARNP; and MIGUEL ANGEL SILVA, M.D., Defendants. / PLAINTIFFSMOTION FOR RECONSIDERATION AND ALTERNATIVELY, FOR RELIEF CONSISTENT WITH STATUTORY EXCEPTION Plaintiff, BELINDHA RUSSELL, as the Personal Representative of the Estate of ROLAND L. CAJUSTE (deceased), pursuant to Circuit Civil Division 33 Procedures, requests reconsideration of this Court's Order Denying Plaintiff s Motion for Summary Judgment and Granting in Part/Denying in Part Defendants' Motions for Summary Judgment, dated February 2, 2024, and states: 1 Introduction On February 2, 2024, this Court denied Plaintiff s Motion for Partial Summary Judgment and granted DefendantsMotions for Partial Summary Judgment to the extent that it found that section 766.118(6), Florida Statutes (2015), capping the noneconomic damages of Medicaid recipients, constitutional and compliant with the Florida Constitution's Equal Protection Clause. This Court found that, because it was "fairly debatable' that capping Medicaid recipients' noneconomic damages might incentivize more physicians to accept and treat patients, section 766.118(6) satisfies rational basis review. Reconsideration is appropriate and necessary on multiple grounds. First, after this Court's ruling, two Florida Circuit Court judges have ruled that section 766.118(6) is unconstitutional. In the interests of predictability and consistency in the law, Plaintiff seeks to present these persuasive rulings for this Court's reconsideration. The newest orders represent a widening chasm within Florida's circuit courts and reveal a growing consistency on this issue to dispense fair justice all Floridians who suffer from medical malpractice, including Medicaid recipients. Second, it appears that this Court may have overlooked Dixon v. United States, No. 15- 23502-Civ-Scola, 2017 WL 1543191 (S.D. Fla. Apr. 28, 2017), aff'd in part and rev'd in part on other grounds, 900 F.3d 1257 (11th Cir. 2018). Although Dixon is not binding, its status as the only federal decision addressing the constitutionality of section 766.118(6), prepared by the highly esteemed Judge Robert Scola, renders it strongly persuasive. Third, due to argument advanced by Defendants, the Court may have misapprehended the rational basis test as set forth in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), and North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017). It is unsurprising that, at the hearing on the competing Motions for Summary Judgment, all parties overlooked important 2 nuances contained within the McCall and Kalitan decisions. After all, together, McCall and Kalitan comprise forty-two pages of legal analysis. Initially, the analysis used in McCall was not an impermissible alteration or shift in Florida's rational basis test, but instead, as Justice Lewis noted, part of the Court's judicial duty as an integral part of determining the legitimacy of the Legislature's stated public purpose. Moreover, this Court relied on Justice Pariente as having disagreed with Justice Lewis in McCall. Importantly, however, even Justice Pariente recognized 1) that statutory caps are unconstitutional as applied to wrongful death actions when applied without regard to the number of claimants entitled to recovery; and 2) even if a crisis existed when section 766.118 was enacted, a crisis is not a permanent condition, allowing courts to examine a subsequent change in conditions to evaluate whether the Legislature's conclusions remain valid. Further, this Court read the distribution of opinions in McCall as most of the Supreme Court disagreeing "that courts may engage in such an independent analysis as Justice Lewis did." (Order, at 8). Although only two justices signed Justice Lewisopinion in McCall, a majority of justices agreed that courts can consider whether circumstances that justified a law when it was passed no longer exist. Similarly, this Court overlooked that Kalitan, signed by a four-justice majority of the Supreme Court, followed McCall in confirming the lack of a medical malpractice crisis causing the caps to become unconstitutional even if they were constitutional when enacted. This Court is bound by the conclusions of a majority of the justices in McCall as well as Kalitan, not the Third District's criticism of McCall in Membreno & Florida Association of Vendors, Inc. v. City of Hialeah, 188 So. 3d 13 (Fla. 3d DCA 2016) (which pre-dated Kalitan and thus has dubious precedential value). 3 As numerous Florida trial courts have recognized, capping Medicaid recipientsnon- economic damages without regard to the number of survivors is not rationally related to a legitimate public purpose. The legitimacy of the Legislature's stated purpose to incentivize more physicians to treat Medicaid recipients is undermined by the Legislature's repeated rejection of Medicaid expansionism. For the same reason, even if "fairly debatable" that a crisis was coming in 2011 due to an expected increase of Medicaid recipients flowing from ACA, those concerns do not exist in 2024. There is no longer a tax penalty for noncompliance with the federal mandate. In some years after section 766.118(6) passed, enrollment declined. Most importantly, in the past year, 1.3 million Floridians have had their eligibility eliminated by the state. Beyond the statute's facial unconstitutionality, Plaintiff also asks this Court to re-examine its view that Plaintiff s affidavits concerning Roland's status failed to reveal a genuine dispute of material fact. Plaintiff submitted evidence that the Florida Casualty Recovery Program had paid $0 for Roland's incident dates. In granting summaiy judgment on this issue, the Court incorrectly held a trial by affidavits and exercised the jury function of determining credibility, even though Plaintiff s evidence was not blatantly contradicted by the record. Finally, if this Court declines to revisit and vacate its February 2, 2024 Order, Plaintiff requests an order granting Plaintiff s Motion for Leave to File Reply to conform the pleadings to its ruling that a genuine dispute of material fact remains as to whether Plaintiff can overcome the caps with proof that Defendants acted in a wrongful manner. Standard for Reconsideration Florida law affords trial courts broad discretion and the inherent authority to reconsider interlocutory rulings for any reason. Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998) (noting 4 a trial court has the "inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of final judgment or order terminating an action....") Non-final "orders are subject to judgesreconsideration sua sponte, even to the point of withdrawing them completely or reversing the initial ruling." Campos v. Campos, 230 So. 3d 553, 556 (Fla. 1st DCA 2017). In VLX Properties, Inc. v. S. States Util., Inc., 792 So. 2d 504, 509 (Fla. 5th DCA 2001) (en banc), the Fifth District Court of Appeal reminded all courts to embrace the opportunity to reach the right decision. See id C[N]either precedent (nor law of the case) should be used to institutionalize or justify error.... Neither this Court nor the law is served by our adhering to a previous position which we now believe to be wrong.") Argument in Support of Reconsideration A. Subsequent Florida Circuit Court Rulings After this Court's Order Have Determined Section 766.118(6) Unconstitutional as Violative of Equal Protection As an initial matter, Plaintiff brings to this Court's attention that two Florida Circuit Court judges have held section 766.118(6) unconstitutional since this Court's ruling. First, four days after this Court's Order, in Persia Peters v. Orange Park Medical Center, Inc., No. 16-2020-CA-005673 (Fla. 4th Jud. Cir.), attached as Exhibit A, Judge Waddell Wallace, III of Duval County held that section 766.118(6) violates Equal Protection for three reasons: This Court is obviously bound by the decisions of the Supreme Court of Florida. Although McCall and Broward did not directly address Section 766.118(6), the supreme court announced a general principle in those decisions that caps which "discriminate between classes of medical malpractice victims" such that "claimants with little noneconomic damages can be awarded all of their damages, in contrast to those claimants whose noneconomic damages are deemed to exceed the level to which the caps apply," are "rendered unconstitutional by McCall." Kalitan, 219 So. 3d at 58. Section 766.118(6), like the materially indistinguishable Sections 766.118(2) and (3), arbitrarily discriminates between Medicaid recipients "with little noneconomic damages" and Medicaid recipients "whose noneconomic damages are deemed to exceed the level to which the caps apply." Id. Accordingly, Section 766.118(6) is "rendered unconstitutional by McCall." Id Section 766.118(6) also violates the Equal Protection Clause of the Florida Constitution under McCall and Kalitan because its caps are not rationally related to the Legislature's stated purpose. Section 766.118(6), like Sections 766.118(2) and (3), has "no mechanism in place to assure that savings are passed on from the insurance companies to the doctors in accordance with the stated purpose of alleviating the rising premiums." Id at 59. There is nothing stopping insurance companies from keeping the savings from Section 766.118(6) while continuing to charge doctors higher insurance premiums. This provides a separate basis for declaring Section 766.118(6) unconstitutional under the Florida Constitution's Equal Protection Clause. Id Additionally, the Florida Legislature has consistently rejected expanding following passage of the Affordable Care Act ("the ACA"). The Legislature's decision not to expand Medicaid in the fourteen years since Congress passed the ACA means, at a minimum, that the purported crisis has long since abated. As "[a] law depending upon the existence of an emergency or other state of facts to uphold it may cease to operate if the emergency ceases," Chastleton, 264 U.S. at 547-48, the Court "conclude[s] that no rational basis exists to justify continued application of the noneconomic damages cap of section 766.118." McCall, 134 So. 3d at 913. Id (emphasis added) (selected citations omitted). Second, on March 22, 2024, in Rodriguez v. Florida Woman Care, LLC, No. 2022-003400- CA-01 (Fla. 1 1 th Jud. Cir.), attached as Exhibit B, Judge Tanya Brinkley of Miami-Dade County determined that section 766.118(6) is unconstitutional: The Court has also reviewed [McCall and Kalitan] which found other subsections of the same statute to be unconstitutional. The Court finds that the Supreme Court's analyses in these cases are similarly applicable to the instant question regarding the constitutionality of subsection 6 of the statute. The Court's duty to construe a statute to uphold its constitutionality is circumscribed by the Constitutions of the State of Florida and United States, as well as precedent addressing the constitutionality of the subject statute. Here, the Florida Supreme Court in [McCall] and the Fourth District Court of Appeal in [Kalitan] have both held "What the 6 caps in section 766.118 violate equal protection under the rational basis test because the arbitrary reduction of compensation without regard to the severity of the injury does not bear a rational relationship to the Legislature's stated interest in addressing the medical malpractice crisis." Defendants argue[] and the Court acknowledges that McCall and Kalitan do not expressly address 766.118(6), however, the unconstitutional provisions of the statute cannot be separated from subsection 6, the legislative purpose expressed cannot be accomplished independently of the portions of the statute which are void, the caps on noneconomic damages in personal injury cases involving Medicaid and non-Medicaid recipients are inseparable in substance and the act is incomplete after the invalid provisions are stricken. See Cramp v. Board of Public Instruction of Orange County, 137 So. 2d 828 (Fla. 1962). Based on the record and the arguments made before this Court and adhering to McCall and Kalitan, the section 766.118(6) cap on Medicaid recipient damages is unconstitutional as it violates equal protection. The Court finds that section 766.118(6) of the Florida Statutes unconstitutionally discriminates based on one's status, for reasons which do not satisfy rational basis review [the Legislature's consistent rejection of Medicaid expansionism and lack of a crisis to justify the arbitrary caps]. Id. (selected citation omitted). As evidenced by Peters and Rodriguez, the chasm amongst trial courts on this issue—with to undersigned counsel's knowledge, more courts holding section 766.118(6) unconstitutional than constitutional—continues to widen. This is continuing to create an uneven legal landscape in which medical malpractice victims who happen to be Medicaid recipients will be bound by the arbitrary caps in some cases, while other cases where the statute has been held unconstitutional will not be. Systemically, this inconsistency negatively impacts the equal distribution of justice throughout Florida. This inequity may very well last for years until the Florida Supreme Court can opine, in an appropriately postured case, whether section 766.118(6) is or is not constitutional. Thus, alone, the importance of consistency in the law warrants the Court devoting additional time to this issue and re-examining its Order. 7 B. This Court Did Not Cite Dixon v. United States Next, the Court's Order does not cite Dixon v. United States, No. 15-23502-Civ-Scola, 2017 WL 1543191 (S.D. Fla. Apr. 28, 2017), affd in part and rev 'd in part on other grounds, 900 F.3d 1257 (11th Cir. 2018). Dixon is persuasive because it was decided by the esteemed Judge Robert Scola and apart from the numerous state court orders, it is the only source addressing the constitutionality of section 766.118(6). Moreover, Dixon appropriately looked to its prediction of how the Florida Supreme Court would be likely to rule, if faced with an actual case or controversy calling into question section 766.118(6)s constitutionality. In Dixon, after analyzing McCall, the Fourth District's decision in Kalitan, and the Second District's decision in Port Charlotte, Judge Scola determined that the sound reasoning in these cases self-evidently applied to the caps, which are in many ways conceptually similar to the caps in sections 766.118(2) and (3): Therefore, although no Florida court has directly addressed the cap for Medicaid recipients under § 766.118(6), Florida courts have broadly applied McCall to hold that the statutory caps in § 766.118 are unconstitutional with respect to personal injury actions. The Court concludes that McCall and its progeny apply equally to subsection 6 (although not expressly directed to that subsection) because it, like subsections 1, 2 and 3, limits damages "arbitrarily [which] diminishes compensation for legally cognizable claims," McCall, 134 So. 3d at 901, and denies plaintiffs equal protection. For the same reasons already set forth in McCall and its progeny, the Court determines that Florida courts would hold this subsection unconstitutional as well. Therefore, the statutory caps do not apply. Id. Because this Court may have overlooked Dixon, reconsideration is warranted. 8 C. McCall and Kalitan Require this Court to Evaluate the Available Data to Consider the Legitimacy of the Stated Legislative Purpose and to Determine the Continued Existence of a Crisis or Emergency for Rational Basis Purposes The Court's application of the rational basis test rests upon disagreement with the way former Florida Supreme Court Justice Fred Lewis, in McCall, "engage[d] in ... an independent analysis" of data supporting the Legislature's stated justification for enacting the noneconomic damage caps of sections 766.118(2) and (3)—the existence of a medical malpractice crisis. However, the Court overlooked several facets of both McCall and Kalitan that both allow for the judiciary's consideration of data when conducting rational basis review and confirm the facial unconstitutionality of section 766.118(6)s caps under the Equal Protection Clause. At the outset, this Court correctly recognized that McCall and Kalitan must "guide this Court's decision." (Order, at 7). Plaintiff agrees—and that is precisely why these nuanced opinions deserve the Court's additional attention. Together, they comprise forty-two pages of legal analysis, and all parties, including Plaintiff, omitted discussion of several important details at the hearing. First, JusticeLewis' approach in McCall does not rewrite the rational basis test, but rather, his permission for courts to consider the truth of "factors and circumstances" surrounding legislation is necessary to give meaning to the rational basis test and ensure that courts do not inadvertently act as the Legislature's rubber stamp when applying it. Justice Lewis explained that his analysis of data supporting whether a medical malpractice crisis existed, and continued to exist, went to the legitimacy of the Legislature's stated purpose: [U]nder Warren, and contrary to the view of the concurring in result opinion, both prongs of the rational basis test must be evaluated to determine the constitutionality of a statute. Despite this precedent, the concurring in result opinion loudly proclaims that the full rational basis test be ignored and the legitimacy of the purpose for the cap not be addressed as part of our constitutional analysis. However, we would abandon our obligation under Warren .... 9 were we to simply rubber stamp the Legislature's asserted justification for the cap and fail to consider the existing factors and circumstances ... to determine whether there is legitimacy to that justification. We decline to abdicate our responsibility under the law and, therefore, address whether the cap "serves a legitimate governmental purpose pursuant to the third prong of Warren, 899 So. 2d at 1095. McCall, 134 So. 3d at 905-06. It is important to note that, as this was Justice Lewisrationale for reviewing data, he did not purport to "overturn Florida's long-standing rational basis test." (Order, at 8). By tying his assessment of facts to an assessment of legitimacy, Justice Lewis' analysis did not run afoul of separation of powers. Second, this Court relied on Justice Pariente (joined by Justices Quince and Perry) as having "disagreed with Justice Lewis' application of the rational basis test." Id. While such disagreement was present in some respects, the justices agreed on other important respects, particularly the duty to consider today's status of whether a crisis exists or not. Initially, Justice Pariente agreed with Justice Lewis that under Florida law, "aggregate caps or limitations on noneconomic damages violate equal protection guarantees under the Florida Constitution when applied without regard to the number of claimants entitled to recovery," and that this "inherently discriminatory action and resulting invidious discrimination do not pass constitutional muster." McCall, 134 So. 3d at 919 (Pariente, J., concurring) (quoting St. Mary's Hosp., Inc. v. Phillipe, 769 So. 2d 961, 971 (Fla. 2000)). Thus,five Florida Supreme Court justices reached this conclusion, which equally applies to the caps of section 766.118(6). Undoubtedly, the caps are still "aggregate caps ... on noneconomic damages" that are to be "applied without regard to the number of claimants ...." Id. Here, this Court did not reference this important agreement by Justice Pariente with the McCall plurality. Further, Justice Pariente agreed with Justice Lewis' review of data to the extent of determining whether a crisis continued to exist. Justice Pariente wrote: 10 Finally, I strongly agree with the plurality that "even if a 'crisisexisted when section 766.118 was enacted, a crisis is not a permanent condition." As I stated in my dissent in Mizrahi v. North Miami Medical Center, Ltd, 761 So. 2d 1040 (Fla. 2000): There is no indication that the past medical malpractice crisis continues into the present. If the medical malpractice crisis does not continue into the present, I fail to see how a past crisis can justify the permanent exclusion of an entire class of victims from seeking compensation for pain and suffering damages due to the wrongful death of their parents as a result of medical malpractice. Indeed, it is a "settled principle of constitutional law" that although a statute is constitutionally valid when enacted, that statute may become constitutionally invalid due to changes in the conditions to which the statute applies. Accordingly, while it is not our role to reexamine legislative fact-finding, we also need not blindly accept the Legislature's conclusions, especially when such conclusions may no longer be valid due to changed conditions. McCall, 134 So. 3d at 920 (emphasis in original) (citations omitted). Thus, similarly, McCall tells us that it was the judgment offive Florida Supreme Court justices, not two, that courts can examine data for the limited purpose of determining whether a particular situation, that may have supported contemporaneous legislation, continued to exist in the future. As there, a "past crisis"—the Legislature's fear of increased enrollment in 2011 due to the Affordable Care Act— cannot justify the egregious caps on severely injured persons' noneconomic damages if it does not continue into the present. Third, in terms of rejecting Justice Lewis' approach, this Court overlooked Kalitan. In Kalitan, Justices Lewis, Pariente, Labarga, and Quince all signed the Court's per curiam opinion. (The Court's Order does not mention this and no counsel pointed it out for the Court's focus and attention.). Thus, a majority of the Court approved the following statement of the Fourth District that equally applies as a matter of law to the caps of section 766.118(6): 11 So long as the caps discriminate between classes of medical malpractice victims, as they do in the personal injury context (where the claimants with little noneconomic damage can be awarded all of their damages, in contrast to those claimants whose noneconomic damages are deemed to exceed the level to which the caps apply), they are rendered unconstitutional by McCall. Kalitan, 219 So. 3d at 58 (quoting Kalitan v. N. Broward Hosp. Dist., 174 So. 3d 403, 413 (Fla. 4th DCA 2015).1 Moreover, at page 59 of Kalitan, a majority of the Court endorsed Justice Lewisand Justice Pariente's view that courts can consider a change in future conditions that may render a statute unconstitutional, even if it was constitutional based on an emergency or certain set of facts that existed at the time it was passed: Furthermore, in McCall, we determined that even if the damages cap were rationally related to a legitimate government purpose when the statute was enacted, there is no evidence of a continuing crisis that would justify the arbitrary application of the statutory cap. Both the plurality and concurring in result opinions recognized that "[a] statute may be constitutionally valid when enacted but may become constitutionally invalid because of changes in the conditions to which the statute applies. Moreover, the plurality opinion observed that "[a] law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed." The plurality opinion explained: "even if there had been a medical malpractice crisis in Florida at the turn of the century, the current data reflects that it has subsided. No rational basis currently exists (if it ever existed) between the cap imposed by section 766.118 and any legitimate state purpose." The concurring in result opinion agreed that there is no evidence of a continuing medical malpractice crisis that would justify the arbitrary reduction of damages. Consequently, we approve the Fouth District's conclusion: "Because addressing the medical malpractice crisis was the Legislature's stated objective when passing section 766.118, if the objective no longer exists, then there is no longer a 'legitimate state objective' which the caps could 'rationally and reasonably relate.'" 1 Section 766.118(6)'s caps in fact discriminate "between classes of medical malpractice victims" in two ways: As between Medicaid recipients who may receive all their damages and those who will be capped, and as between Medicaid recipients and non-Medicaid recipients who are not capped pursuant to McCall and Kalitan. 12 Id at 59 (citations omitted). Plaintiff recognizes that McCall gave rise to some debate regarding the appropriate scope of rational basis review, as this Court's reliance on Membreno & Florida Association of vendors, Inc. v. City of Hialeah, 188 So. 3d 13 (Fla. 3d DCA 2016), demonstrates. However, this Court is bound by McCall and Kalitan, not the 2016 Membreno Third District decision. Unlike McCall and Kalitan, Membreno was not a caps decision, but involved the constitutionality of a zoning ordinance for street vendors. Further, Membreno pre-dated Kalitan, in which, again, a majority of the Florida Supreme Court confirmed that discriminatory caps of section 766.118 are unconstitutional, and that consideration of whether an emergency, or analogous state of facts supporting legislation when it was passed, continues to exist, is not only permissible, but the duty of the Court. D. The Alleged "Legitimate Governmental Interesr for the Caps was the Affordable Care Act which Florida Has Rejected On the merits, the Court cited Plaintiff s point that "because the Legislature subsequently declined to expand Medicaid, the 'crisisnever came to fruition," and rejected it given Membreno's statement that whether the statutory scheme will promote the legislative objective is not dispositive. (Order, at 10). However, in light of the foregoing clarification that both McCall and Kalitan not only permit but require analysis of whether a set of facts that might conceivably have justified legislation continues to exist into the future, revisiting the facts regarding the Legislature's repeated rejection of Medicaid expansionism is necessary and appropriate. Respectfully, the Court's current Order includes no analysis of this vital constitutional analysis. As Plaintiff pointed out, Florida is out of only fourteen states that have declined to expand Medicaid. Alison Yaeger, Connecting the Dots: How Expansion will Improve Public Health, Increase Financial Stability, and Lessen Disparities in South Florida, Fla. Health Justice 13 Project (updated July 2022), available at Exhibit C to Plaintiff s December 14, 2023 Omnibus Response; see also Cianci & Harmatz, Opposition, Inaction, and Obstruction: A History of Florida's Failure to Pass Expansion (July 2022 Update), available at Exhibit D to Omnibus Response. Not only that, in 2023, hundreds of thousands of Floridians lost their eligibility. See Omnibus Response, at 11-12. As of August 2023, about 400,000 had been terminated from See Joe Mario Pederson, Central Florida Public Media, More Than Halfof Medicaid Recipients Terminated May Still Qualifr, State Data Shows (Aug. 17, 2023), available at https://www.wusf. org/health-news- florida/2023-08-17/more-than-half-medicaid-recipients-terminated-may-qualify-state-data- shows, attached as Exhibit C. As of November 2023, the media reported, "[n]early a quarter of a million children were ineligible for Medicaid as the state is about halfway through its redetermination process, in which the Department of Children and Family Services is reevaluating eligibility for 5.5 million Floridians. ... During the Senate appropriations meeting last month said the unwinding process was going well."). See Joe Mario Pederson, Central Florida Public Media, Thousands of Children in Florida are Without Coverage Afier Unwinding (Nov. 13, 2023), available at https ://www.wusf. org/health-news-florida/2023-11 -13/thousands-children- florida-without-coverage-medicaid-unwinding, attached as Exhibit D. As of April 12, 2024, over 1.3 million Floridians have been deleted from the rolls. Caroline Catherman, Orlando Sentinel, After Losing Parents of Florida's Sickest Kids are in Limbo (Apr. 12, 2024), available at attached as Exhibit E (Over the last year, Florida has dropped over 1.3 million people, including 460,000 children, from its state Medicaid program after the end of a pandemic-era policy that banned states from removing participants who became ineligible."). AHCA's most recent report 14 shows that between September 2023 and February 2024, Florida's enrollment decreased by 355,526 people. Florida Agency for Health Care Administration, Medicaid Monthly Enrollment Report (Feb. 2024), available at https://ahca.myflorida.com/medicaid/medicaid-finance-and- analytics/medicaid-data-analytics/medicaid-monthly-enrollment-report (last visited Apr. 12, 2024), attached as Exhibit F. Florida's complete refusal to pass, and in many cases, even to debate, any expansion bills, and now Florida's striking the eligibility of over 1 million of its citizens offers this Court a quintessential example of a "changen in the conditions to which the statute applies" or put another way, a changed set of facts, even if, as the Court believes, a "certain state of facts" existed in 2011 that justified the caps. Kalitan, 219 So. 3d at 59. Just as there was "no evidence of a continuing medical malpractice crisis" in 2017 when the Florida Supreme Court decided Kalitan, even accepting this Court's conclusion as true that fear of Medicaid expansion imbued section 766.118(6) with a rational basis, there is zero evidence now of an increase (or even a stable level) of Medicaid expansion where the government has stricken over 1 million patients from the rolls and its redetermination program remains in force, let alone evidence now that caps are likely to incentivize physicians to treat patients. This Court found it "fairly debatable" whether the methods adopted in the Caps law served a legitimate purpose and that "there exists a good faith conflict over facts, some of which support the legislative finding." (Order, at 10-11). There is a genuine and important need here for this Court to reconsider whether such a "good faith conflict," if it ever existed, still exists in 2024, given the Legislature's repeated rejection of Medicaid expansion every year from 2013 to 2021 (see Omnibus Response, at 11), and the government's dropping of eligibility redetermination efforts are completed. In 2024, it is not good faith to have passed caps 15 based on an expectation that "[t]he existence of the federal mandate to purchase insurance will result in many eligibles coming forward and enrolling in ....," there is no longer a tax penalty for noncompliance with the federal mandate as of 2019,2 the Legislature never passed expansion, and Florida is now cutting people from the rolls by the hundreds of thousands as no longer constrained by the hold in place during the COVID-19 pandemic. Cf Final Bill Analysis, attached as Exhibit A to Omnibus Response. To be sure, Plaintiff submits that a good faith factual conflict did not exist in 2011, and Plaintiff disagrees that the validity of the Legislature's method of capping its most vulnerable residentsnoneconomic damages could be "fairly debated" to serve the stated purpose. Indeed, the Legislature was likely aware that it never intended to pass expansion. Regardless, however, what the Court has overlooked is its need, recognized by a majority of the Florida Supreme Court in both McCall and Kalitan, to consider data that may render a law unconstitutional in the future even if constitutional when passed. Courts cannot remain silent in the face of unconstitutional legislation and yield undue deference to the stated legislative objective, where, as here, the circumstances on which that objective is premised no longer exist. E. Plaintiff s Affidavits Revealed a Genuine Dispute of Material Fact as to Whether Roland was a Medicaid Recipient at the time of the Malpractice Finally, Plaintiff requests this Court reconsider its determination that there was no genuine dispute of material fact regarding Roland's status as a Medicaid recipient. While the Court observed that Ms. Russell's affidavit averring that Roland had health insurance through United Healthcare did not necessarily conflict with evidence that United Healthcare administered Roland's Medicaid plan, the Court also correctly noted that Plaintiff submitted "a letter from the 2 Norris, Does the IRS Still Enforce the Individual Mandate?, HealthInsurance.org (Jan. 12, See Louise 2024), available at https://www.healthinsurance.org/faqs/does-the-presidents-executive-order-mean-the- irs-wont-enforce-the-individual-mandate-penalty/ (last visited Apr. 12, 2024), attached as Exhibit G. 16 Florida Casualty Recovery Program show[ing] that did not make any payments related to Roland's case." (Order, at 4). Respectfully, the Court erred in determining that this evidence did no more than offer the "mere possibility" that Roland was not a Medicaid recipient. The Order mentioned supra, in Peters, provides a roadmap for this Court to follow. In Peters, Judge Wallace reasoned: Plaintiff presented competent evidence, namely deposition testimony and billing records, that she was insured by United Healthcare, not when the at-issue medical services were provided. While Peters and Hagan did enroll in after the alleged malpractice, Section 766.118(6) plainly applies only to individuals who were Medicaid recipients at the time of the malpractice. Accordingly, partial summary judgment for the Defendants is inappropriate because the evidence, when viewed in the light most favorable to the Plaintiff, reveals that Plaintiff was not a Medicaid recipient at the time of the medical malpractice. Peters, No. 16-2020-CA-005673. Here, under cover of the Affidavit of Graciela Perez, attached as Exhibit H, Plaintiff submitted correspondence dated June 10, 2017, demonstrating that Unitedflealthcare Community Plan had paid $14,132.17 for medical expense benefits. Moreover, on August 5, 2021, the Florida Casualty Program prepared correspondence stating: We have recently reviewed our records and have determined there have not been any payments related to the above date of incident at this time. This is our final review of the paid claims and the case regarding this date of incident is now closed. Exhibit A-2 to Exhibit H. The Court determined that, based on Defendantsevidence, "a reasonable jury could only find that Roland was a Medicaid recipient." (Order, at 5). However, viewing the evidence most favorable to Roland, a reasonable jury could also fully credit Roland's evidence and disregard Defendants' evidence, and thus determine that Roland was not a Medicaid recipient at the time of 17 the alleged malpractice. In finding no genuine dispute of material fact, the Court incorrectly held a trial by affidavit. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 176 (1970) ("The advantages of trial before a live jury with live witnesses, and all the possibilities of considering the human factors, should not be eliminated by substituting trial by affidavit and the sterile bareness of summary judgment. ... Trial by affidavit is not substitute for trial by jury which so long has been the hallmark of 'even handed justice.) (e.s.). Under Florida's summary judgment standard, it is "[o]nly when the record evidence blatantly contradicts a litigant's version of the facts [that] a court will be allowed to weigh conflicting evidence or determine the credibility of a witness." Gracia v. Security First Ins. Co., 347 So. 3d 479, 482 n.1 (Fla. 5th DCA 2022). That standard was not met here: It cannot be said that the record "blatantly" contradicted Plaintiff s assertion of Roland's status in December 2015. F. Alternative to Granting Rehearing and Vacatur of its Finding of Constitutionality, Plaintiff Requests the Court to Allow Amendment to Conform the Status of the Pleadings to the Court's Ruling. Should this Court not grant rehearing and vacate its finding of constitutionality, Plaintiff requests permission to amend the pleadings, in accordance with Plaintiff s previously filed Motions, so that Plaintiff s "wrongful mannee rebuttal to the capsimposition is properly postured for trial. As a reminder, in Section V of its Order, this Court determined that a genuine dispute of material fact remained as to whether Defendants acted in "bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights [or] safety ...." in their treatment of Roland. Specifically, on March 2, 2022, Plaintiff filed an Amended Motion for Leave to Amend Complaint. (it looks like (at least) one of the Defendants filed a Response saying no objection to 18 the amendment. Of note, on March 21, 2023, Pediatric Care Group and Dr. Silva filed a Response to that Motion, stating those Defendants had no objection to the requested amendment. Superseding the Amended Motion for Leave to Amend, on February 23, 2024, Plaintiff moved for leave to file a Reply to DefendantsAffirmative Defenses to the Amended Complaint. Plaintiff s proposed Reply sets forth that, "[i]n light of the Court's ruling on February 2, 2024 that subsection (6) is constitutional, Plaintiff will meet her statutory burden by proving with clear and convincing evidence that Defendants acted in a manner exhibiting wanton and willful disregard of the human rights and safety of the minor," Roland. Therefore, Plaintiff alternatively requests this Court to enter an order granting Plaintiffs' February 23, 2024 Motion for Leave to File Reply. Conclusion Reconsideration is appropriate on threshold grounds that additional trial judges have held section 766.118(6) unconstitutional since this Court's ruling, and the Court's Order appears to have overlooked Dixon. Most importantly, this Court appears to have misapprehended that even Justice Pariente in McCall (and thus, a majority of the Supreme Court) determined the caps' violation of equal protection in multiple-claimant scenarios rendered them unconstitutional and that courts are empowered to consider available data at least to evaluate whether circumstances that may have rendered a law rationally related to a legitimate public purpose when passed have changed. So too, a four-justice majority of the Court in Kalitan confirm this is the law of the land. Here, a quintessential example of changed circumstances exists because the Legislature never passed expansion, there is essentially no longer a federal mandate, and Florida's executive branch has purged over a million Floridians from the rolls in the last year. Under these circumstances, the conclusion that the Legislature may continue to constitutionally