        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

 LE PUBLICATIONS, INC., LIFE EXTENSION FOUNDATION BUYERS
  CLUB, INC., and LIFE EXTENSION CLINICAL RESEARCH, INC.,
                          Appellants,

                                      v.

                             RANDALL KOHL,
                                Appellee.

                              No. 4D19-1913

                               [May 27, 2020]

  Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; David Haimes, Judge; L.T. Case No.
CACE-07-015624(14).

   Clifford A. Wolff of Wolff Law, Fort Lauderdale, for appellants.

   G. William Allen, Jr., Fort Lauderdale, for appellee.

FORST, J.

   In this Florida whistleblower case, the defendants, LE Publications,
Inc., Life Extension Foundation Buyers Club, Inc., and Life Extension
Clinical Research, Inc., appeal from the trial court’s final judgment entered
on a jury verdict in favor of the plaintiff, Dr. Randall Kohl. The plaintiff
cross-appeals, challenging the trial court’s remittitur of his noneconomic
damages award. The defendants raise several issues on appeal, but we
write to address only one—whether the trial court erred in failing to direct
a verdict for the defendants because the plaintiff failed to establish a prima
facie case under the Florida Whistleblower Act. On that issue, we affirm.
Finding no abuse of discretion as to the remaining points in both the
appeal and cross-appeal, we affirm them without further discussion.

                                Background

   On July 3, 2007, the plaintiff filed suit against the defendants. His
amended complaint asserted a claim under section 448.102, Florida
Statutes (2005), also known as Florida’s Whistleblower Act (“FWA”). The
amended complaint alleged that the defendants, who were in the business
of selling vitamins and supplements, fired the plaintiff from his position as
a “Senior Editor” on July 7, 2005, in retaliation for reporting to upper
management “serious violations of Federal Drug laws taking place at the
Defendants’ premises.”

    The defendants filed their answer and affirmative defenses. As
affirmative defenses, the defendants asserted that the plaintiff’s claim was
barred for several reasons, including that the plaintiff failed to state a
claim for which relief could be granted because he did not actually
threaten to report any violation of law, nor was any practice of the
defendants a violation of any law which would make the claim actionable.

   In their joint pretrial stipulation, the parties stipulated that the plaintiff
was: (1) an employee of defendant LE Publications, Inc.; (2) hired by the
defendant on January 5, 2004; and (3) terminated by the defendant on
July 7, 2005. The parties further stipulated that issues for trial resolution
included whether the plaintiff was terminated for misconduct at work; for
threatening to disclose alleged violations committed by the defendants to
certain federal agencies; or for objecting to, or refusing to, participate in
an activity, policy or practice of the employer which was in violation of a
law, rule or regulation.

     At trial, the plaintiff’s evidence showed he was employed by the
defendants—collectively referred to by the parties, trial court and
witnesses as “Life Extension,” “LE” or “LEF”—as a senior editor and that
he also chaired the company’s Institutional Review Board (“IRB”). The
IRB’s purpose was to monitor clinical trials/studies and evaluate protocol
to ensure the health and safety of clinical trial subjects. The plaintiff
testified that he became concerned after reading an article in the
defendants’ magazine about a migraine treatment study conducted by
fellow employee, Dr. Dzugan. The plaintiff did some investigation and then
wrote a note listing his concerns of FDA violations and requesting that his
supervisor Dr. Joyal organize a meeting with Dr. Dzugan so the plaintiff
could “critically address and correct FDA regulation violations at LEF
. . . .” The plaintiff claimed this note was titled “Agenda for July 7 meeting
with Dr. Joyal and [the plaintiff]” and that he hand-delivered it to Dr. Joyal
on July 1, before he left for the holiday weekend. On his first day back
after the holiday, the plaintiff was fired immediately.

   The defendants presented testimony that they never received the
plaintiff’s note/agenda before this litigation began, that the plaintiff never
reported an FDA problem to the company before he was fired, and that he
was fired for legitimate, non-retaliatory reasons.


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    When the plaintiff rested, the defendants moved for a directed verdict,
arguing the plaintiff failed to: (1) prove that any of the three defendants
was his employer; (2) sue the right party, which was “Life Extension
Scientific [sic], Inc.”; and (3) rebut the defense that he was terminated for
a legitimate non-retaliatory reason. The trial court denied the defendants’
motion, and their renewed motion at the conclusion of all evidence. The
jury returned a verdict for the plaintiff and awarded him damages for past
lost earnings, mental anguish, and loss of dignity.

    In their post-trial motion for directed verdict/to set aside the verdict/
for new trial, the defendants argued the plaintiff failed to establish a prima
facie claim under the FWA for failure to prove: (1) the identity of his
employer; (2) that the complained-of action was attributable to his
employer; and (3) that the complained-of action was in violation of a law,
rule or regulation. The defendants also moved for remittitur of the
noneconomic damages award.            The trial court denied all but the
defendants’ motion for remittitur, which the court granted in part. The
trial court then entered final judgment for the plaintiff. This appeal and
cross-appeal followed.

                                  Analysis

    The defendants argue they were entitled to a directed verdict because
the evidence failed to establish a prima facie case under the FWA.
Specifically, the defendants argue the plaintiff failed to present competent
substantial evidence that: (1) each (or any) defendant was his “employer;”
(2) the acts complained of were those of any defendant; and (3) an act of
his employer was in violation of a law, rule or regulation. As discussed
below, the defendants’ arguments are unpreserved, waived and/or
meritless.

     “When deciding the appropriateness of a directed verdict . . . Florida
trial and appellate courts use the test of whether the verdict . . . would be
. . . supported by competent, substantial evidence.” Siegel v. Cross Senior
Care, Inc., 239 So. 3d 738, 743 (Fla. 3d DCA 2018) (quoting Lindon v.
Dalton Hotel Corp., 49 So. 3d 299, 303 (Fla. 5th DCA 2010)). “[A]n
appellate court must affirm the denial of a motion for directed verdict if
any reasonable view of the evidence could sustain a verdict in favor of the
non-moving party.” Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.
3d 247, 250 (Fla. 4th DCA 2009).

   The FWA prohibits an employer from taking retaliatory action against
an employee because the employee has “[o]bjected to, or refused to
participate in, any activity, policy, or practice of the employer which is in

                                      3
violation of a law, rule, or regulation.” § 448.102(3), Fla. Stat. (2005).
“‘Law, rule, or regulation’ includes any statute or ordinance or any rule or
regulation adopted pursuant to any federal, state, or local statute or
ordinance applicable to the employer and pertaining to the business.” §
448.101(4), Fla. Stat. (2005).

    To establish a prima facie case under the FWA, a plaintiff must show
that: (1) he objected to or refused to participate in any illegal activity, policy
or practice of the employer; (2) he suffered an adverse employment action;
and (3) the adverse employment action was causally linked to his objection
or refusal. Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904, 916 (Fla.
4th DCA 2013). In Aery, we interpreted the first element of an FWA claim
to mean that a plaintiff objecting to the employer’s conduct need only have
“a good faith, objectively reasonable belief” that the employer’s activity was
illegal. Id. (quoting Luna v. Walgreen Co., 575 F. Supp. 2d 1326, 1343
(S.D. Fla. 2008)).

   The defendants first argue the plaintiff failed to prove which of the three
defendants was his employer or that the acts complained of were those of
any defendant. We reject this argument. As noted above, the defendants
stipulated pre-trial that the plaintiff was employed by defendant LE
Publications. 1 Moreover, at trial, the defendants were collectively referred
to by the parties, witnesses and trial court as “Life Extension” or “LEF.”
Defense counsel (who represented all three defendants) voiced no objection
when plaintiff’s counsel stated during opening remarks that he would
“refer to all three Defendants here as ‘Life Extension.’” Trial evidence
showed that the three defendants were located in the same building and
shared a telephone number and website. As for the defendants’ claim that
the “true” employer was Scientific Information, Inc., the evidence showed
that “Scientific Information” was simply the department in which the
plaintiff worked.

    The defendants also argue the plaintiff failed to prove that an act of his
employer was an actual violation of a law, rule or regulation. See Kearns
v. Farmer Acquisition Co., 157 So. 3d 458, 465 (Fla. 2d DCA 2015) (stating
the FWA requires a plaintiff to prove “that he objected to an actual violation
of law or that he refused to participate in activity that would have been an
actual violation of law”) (emphasis added)). In so arguing, the defendants
request that we recede from our holding in Aery that a plaintiff objecting
to his employer’s conduct need only have “a good faith, objectively

1 “A pretrial stipulation is binding on the parties and the court.” Dania Beach
Boat Club Condo. Ass’n, Inc. v. Forcier, 290 So. 3d 99, 101 (Fla. 4th DCA 2020)
(citation omitted).

                                        4
reasonable belief” that the employer’s activity was illegal. 118 So. 3d at
916. As support for their position, the defendants cite Judge Gross’s
specially concurring opinion in Usher v. Nipro Diabetes Systems, Inc., 184
So. 3d 1260, 1262 (Fla. 4th DCA 2016), which suggests this court may one
day “reconsider language in Aery . . . that may conflict with the thoughtful
analysis in Kearns . . . .”

   This is not that day, for we conclude the defendants’ argument was not
preserved below and is thus waived. Not only did the defendants fail to
raise this issue before the jury rendered its verdict, they failed to request
any special instruction or interrogatory on the verdict form. 2 Perhaps that
was because their defense was that the plaintiff never submitted a note to
the company reporting alleged FDA violations—a defense which the jury
obviously rejected.

   In any event, the trial court’s instruction to the jury on “protected
activity” followed the precise language of the statute, rather than the
“reasonable belief” standard from Aery. No objection was raised by either
party to this instruction, and it was not fleshed out, one way or the other,
regarding the plaintiff’s burden to establish either an actual violation or a
reasonable belief of a violation. Thus, as in Usher, it is not necessary that
we reach the Aery argument.

                                    Conclusion

   Competent substantial evidence supports the jury’s verdict in favor of
the plaintiff on his Florida whistleblower claim. Thus, the trial court was
correct in denying the defendants a directed verdict. Whether we should
revisit Aery’s “reasonable belief” standard is a question for another day.

    Affirmed.

GROSS and GERBER, JJ., concur.

                               *          *          *



2 The verdict form asked, “Did the Plaintiff engage in protected activity which was
a motivating factor that made a difference in the Defendants’ decision to
discharge the Plaintiff from his employment with the Defendants?” The jury
instructions defined “protected activity” as “Objecting to defendants’ activity,
policy, or practice that violated a law, rule, or regulation or refusing to participate
in defendants’ activity, policy or practice that violated a law, rule, or regulation
or would have same, had plaintiff participated.”

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Not final until disposition of timely filed motion for rehearing.




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