          Supreme Court of Florida
                                   ____________

                                   No. SC11-1148
                                   ____________

             ESTATE OF MICHELLE EVETTE MCCALL, et al.,
                            Petitioners,

                                         vs.

                       UNITED STATES OF AMERICA,
                               Respondent.

                                  [March 13, 2014]

LEWIS, J.

      This case is before the Court to answer four questions of Florida law

certified by the United States Court of Appeals for the Eleventh Circuit that are

determinative of a cause pending in that court and for which there appears to be no

controlling precedent. We have jurisdiction. Art. V, § 3(b)(6), Fla. Const. In

Estate of McCall v. United States, 642 F.3d 944 (11th Cir. 2011), the Eleventh

Circuit certified the following questions:

      (1) DOES THE STATUTORY CAP ON NONECONOMIC
      DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT TO
      EQUAL PROTECTION UNDER ARTICLE I, SECTION 2 OF THE
      FLORIDA CONSTITUTION?
      (2) DOES THE STATUTORY CAP ON NONECONOMIC
      DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT OF
      ACCESS TO THE COURTS UNDER ARTICLE I, SECTION 21 OF
      THE FLORIDA CONSTITUTION?

      (3) DOES THE STATUTORY CAP ON NONECONOMIC
      DAMAGES, FLA. STAT. § 766.118, VIOLATE THE RIGHT TO
      TRIAL BY JURY UNDER ARTICLE I, SECTION 22 OF THE
      FLORIDA CONSTITUTION?

      (4) DOES THE STATUTORY CAP ON NONECONOMIC
      DAMAGES, FLA. STAT. § 766.118, VIOLATE THE
      SEPARATION OF POWERS GUARANTEED BY ARTICLE II,
      SECTION 3 AND ARTICLE V, SECTION 1 OF THE FLORIDA
      CONSTITUTION?

Id. at 952-53. Because this case involves a wrongful death, we rephrase the first

certified question as follows:

      DOES THE STATUTORY CAP ON WRONGFUL DEATH
      NONECONOMIC DAMAGES, FLA. STAT. § 766.118, VIOLATE
      THE RIGHT TO EQUAL PROTECTION UNDER ARTICLE I,
      SECTION 2 OF THE FLORIDA CONSTITUTION?

As explained below, we answer the first rephrased certified question in the

affirmative and hold that the cap on wrongful death noneconomic damages

provided in section 766.118, Florida Statutes, violates the Equal Protection Clause

of the Florida Constitution. We find it unnecessary to answer the remaining

certified questions because Florida’s Wrongful Death Act is of statutory origin,

and the present case is under the Federal Tort Claims Act and its procedures.

                    FACTS AND PROCEDURAL HISTORY

      In its opinion, the Eleventh Circuit detailed the facts regarding the legal



                                        -2-
action filed by the estate of Michelle McCall, Ms. McCall’s parents, and the father

of Ms. McCall’s son (Petitioners) against the United States:

             During June 2005, Michelle McCall received prenatal medical
      care at a United States Air Force clinic as an Air Force dependent.
      Ms. McCall opted for the Air Force’s family practice department to
      provide primary prenatal care and delivery services throughout her
      pregnancy. She had a healthy and normal pregnancy until the last
      trimester. On February 21, 2006, test results revealed that Ms.
      McCall’s blood pressure was high and that she was suffering from
      severe preeclampsia. Ms. McCall’s serious condition required that
      labor be induced immediately.
             Instead of transferring Ms. McCall to the OB/GYN department,
      the family practice department continued to provide medical care.
      The Air Force hospital was temporarily unavailable for obstetric and
      delivery services, so members of the family practice department
      transferred Ms. McCall to the Fort Walton Beach Medical Center
      instead. There, Air Force family practice doctors treated Ms. McCall
      for hypertension and induced labor. When Ms. McCall dilated to five
      centimeters, her contractions slowed and became weaker. The Air
      Force family practice doctors treating Ms. McCall called an Air Force
      obstetrician, Dr. Archibald, and asked if he could perform a cesarean
      section. Dr. Archibald reported that he was performing another
      surgery and would not be available to perform a cesarean section on
      Ms. McCall until after he finished that surgery. The Air Force family
      practice doctors prepared Ms. McCall for a cesarean section but did
      not call other obstetricians to determine if one was available to
      provide immediate medical care.
             On February 22, 2006, Dr. Archibald finally arrived to perform
      the cesarean section, but Ms. McCall’s contractions had resumed and
      the Air Force family practice doctors decided to allow Ms. McCall to
      deliver vaginally. Dr. Archibald left the Fort Walton Medical Center.
      On February 23, 2006 at 1:25 a.m., Ms. McCall delivered a healthy
      baby boy. Family members who visited Ms. McCall after the delivery
      expressed concerns about the amount of blood Ms. McCall had lost
      during delivery. Medical personnel assured these family members
      that Ms. McCall was stable.
             Thirty-five minutes later, when the placenta had not delivered
      as expected, two family practice doctors from the family practice

                                       -3-
      department tried without success to manually extract the placenta. An
      Air Force nurse anesthetist administered additional epidural pain relief
      and gave Ms. McCall two separate doses of Morphine intravenously.
      Around 2:35 a.m., the family practice department doctors called Dr.
      Archibald, the obstetrician, for assistance when they could not remove
      the placenta manually.
              Ms. McCall’s blood pressure began to drop rapidly and
      remained dangerously low over the next two and a half hours. The
      Air Force nurse anesthetist monitoring Ms. McCall’s vital signs did
      not notify the family practice doctors of the drop in Ms. McCall’s
      blood pressure. Dr. Archibald arrived at 2:45 a.m. and removed the
      placenta within five minutes. The family practice department doctors
      informed Dr. Archibald that Ms. McCall had not lost much blood
      during delivery. Dr. Archibald, however, noticed severe vaginal
      lacerations and worked to repair them over the next hour. During that
      time, the Air Force nurse anesthetist monitored Ms. McCall’s vital
      signs, reported to Dr. Archibald that they were stable, and failed to
      inform him that Ms. McCall’s blood pressure was dangerously low
      and continuing to drop. Dr. Archibald never checked the vital signs
      himself and relied exclusively on the nurse to inform him of any blood
      pressure changes or problems.
              At 3:50 a.m. when Dr. Archibald finished his work, he
      requested an immediate blood count and, if needed, a transfusion to
      compensate for the blood Ms. McCall lost during the procedure.
      Forty minutes later, the family practice department physician ordered
      the blood count test. Forty minutes after that, and over an hour after
      Dr. Archibald had requested immediate blood work, a nurse attempted
      to draw blood from Ms. McCall. Ms. McCall was unresponsive. She
      had gone into shock and cardiac arrest as a result of severe blood loss.
      It is not clear how long Ms. McCall had been in this state, since no
      one had monitored her or checked her status for the hour following
      Dr. Archibald’s procedure. Ms. McCall never regained consciousness
      and was removed from life support on February 27, 2006.

Id. at 946-47.

      The Petitioners filed an action against the United States under the Federal

Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80. Id. at 947. In addition



                                       -4-
to finding the United States liable under the FTCA, the United States District Court

for the Northern District of Florida determined that the Petitioners’ economic

damages, or financial losses, amounted to $980,462.40. Id. The district court

concluded that the Petitioners’ noneconomic damages, or nonfinancial losses,

totaled $2 million, including $500,000 for Ms. McCall’s son and $750,000 for each

of her parents. Id.

      However, the district court limited the Petitioners’ recovery of wrongful

death noneconomic damages to $1 million upon application of section 766.118(2),

Florida Statutes (2005), Florida’s statutory cap on wrongful death noneconomic

damages based on medical malpractice claims. Id. 1 The district court denied a

motion filed by the Petitioners that challenged the constitutionality of Florida’s

wrongful death statutory cap under both the Florida and United States

Constitutions. Id. The district court also denied the Petitioners’ motion to alter or

amend the judgment. Id. at 947-48.

      On appeal to the Eleventh Circuit, the Petitioners challenged the district

court’s rulings with regard to both the application and the constitutionality of the

cap mandated by Florida law on wrongful death noneconomic damages for medical

       1. Under the FTCA, damages are “determined by the law of the State where
the tortious act was committed, 28 U.S.C. § 1346(b), . . . subject to the limitations
that the United States shall not be liable for ‘interest prior to judgment or for
punitive damages.’ ” Hatahley v. United States, 351 U.S. 173, 182 (1956) (quoting
28 U.S.C. § 2674).


                                         -5-
malpractice claims. Id. at 948. The Petitioners contended that the statutory cap

violates the Equal Protection Clause of the Fourteenth Amendment of the United

States Constitution and constitutes a taking in violation of the Fifth Amendment of

the United States Constitution. Id. They also asserted that the cap violates the

following provisions of the Florida Constitution: (1) the separation of powers

guarantee in article II, section 3 and article V, section 1; (2) the right to trial by

jury under article I, section 22; (3) the right of access to the courts under article I,

section 21; (4) the right to equal protection under article I, section 2; and (5) the

prohibition against the taking of private property without full compensation under

article X, section 6. Id.

      The Eleventh Circuit affirmed the application of the statutory cap on

noneconomic damages and held that the statute does not constitute a taking in

violation of article X, section 6, of the Florida Constitution. Id. at 953. The

federal appellate court also held that the cap does not violate either the Equal

Protection Clause or the Takings Clause of the United States Constitution. Id.

However, the Eleventh Circuit granted a motion filed by the Petitioners to certify

four questions to this Court regarding the remaining challenges to the statutory cap

under the Florida Constitution. Id.




                                           -6-
                          STATUTORY PROVISION

      At issue is Florida’s statutory cap on wrongful death 2 noneconomic damages

in medical negligence actions as articulated in section 766.118. Section

766.118(2) states:

             (2) Limitation on noneconomic damages for negligence of
      practitioners.—
             (a) With respect to a cause of action for personal injury or
      wrongful death arising from medical negligence of practitioners,
      regardless of the number of such practitioner defendants,
      noneconomic damages shall not exceed $500,000 per claimant. No
      practitioner shall be liable for more than $500,000 in noneconomic
      damages, regardless of the number of claimants.
             (b) Notwithstanding paragraph (a), if the negligence resulted in
      a permanent vegetative state or death, the total noneconomic damages
      recoverable from all practitioners, regardless of the number of
      claimants, under this paragraph shall not exceed $1 million. In cases
      that do not involve death or permanent vegetative state, the patient
      injured by medical negligence may recover noneconomic damages not
      to exceed $1 million if:
             1. The trial court determines that a manifest injustice would
      occur unless increased noneconomic damages are awarded, based on a
      finding that because of the special circumstances of the case, the
      noneconomic harm sustained by the injured patient was particularly
      severe; and
             2. The trier of fact determines that the defendant’s negligence
      caused a catastrophic injury to the patient.
             (c) The total noneconomic damages recoverable by all
      claimants from all practitioner defendants under this subsection shall
      not exceed $1 million in the aggregate.




       2. The legal analyses for personal injury damages and wrongful death
damages are not the same. The present case is exclusively related to wrongful
death, and our analysis is limited accordingly.


                                       -7-
§ 766.118(2), Fla. Stat. 3 Noneconomic damages refer to “nonfinancial losses . . .

including pain and suffering, inconvenience, physical impairment, mental anguish .

. . loss of capacity for enjoyment of life, and other nonfinancial losses to the extent

the claimant is entitled to recover such damages under general law, including the

Wrongful Death Act.” § 766.202(8), Fla. Stat. (2005) (incorporated in §

766.118(1)(b), Fla. Stat. (2005)).

                              EQUAL PROTECTION

      We have rephrased the first question certified to this Court by the Eleventh

Circuit which addresses whether the cap on wrongful death noneconomic damages

under section 766.118 violates the right to equal protection guaranteed by the

Florida Constitution. The Florida Constitution provides, in pertinent part:

      All natural persons, female and male alike, are equal before the law.

Art. I, § 2, Fla. Const. This Court has stated “[t]he constitutional right of equal

protection of the laws means that everyone is entitled to stand before the law on



        3. Section 766.118 separates the cap on noneconomic damages into two
categories, providing different limitations on damages for practitioners and
nonpractitioners. See § 766.118(2), (3), Fla. Stat. Section 766.118(3), Florida
Statutes, limits noneconomic damages for the negligence of nonpractitioner
defendants. The Petitioners asserted that they were entitled to recover under this
subsection as well; however, the federal district court noted that “no evidence at
trial singled out a specific nonpractitioner for negligent conduct.” McCall, 642
F.3d at 948-49 (quoting Estate of McCall v. United States, 663 F. Supp. 2d 1276,
1295 (N.D. Fla. 2009)). The federal district court concluded that the Petitioners
had failed to establish that Ms. McCall’s death resulted from the negligence of a
nonpractitioner, and the Eleventh Circuit affirmed this determination. Id. at 949.

                                         -8-
equal terms with, to enjoy the same rights as belong to, and to bear the same

burden as are imposed upon others in a like situation.” Caldwell v. Mann, 26 So.

2d 788, 790 (Fla. 1946).

      Unless a suspect class or fundamental right protected by the Florida

Constitution is implicated by the challenged provision, the rational basis test will

apply to evaluate an equal protection challenge. See Amerisure Ins. Co. v. State

Farm Mut. Auto. Ins. Co., 897 So. 2d 1287, 1291 n.2 (Fla. 2005). To satisfy the

rational basis test, a statute must bear a rational and reasonable relationship to a

legitimate state objective, and it cannot be arbitrary or capriciously imposed.

Dep’t of Corr. v. Fla. Nurses Ass’n, 508 So. 2d 317, 319 (Fla. 1987). Stated

another way, the test for consideration of equal protection is whether individuals

have been classified separately based on a difference which has a reasonable

relationship to the applicable statute, and the classification can never be made

arbitrarily without a reasonable and rational basis.

      Having carefully considered the arguments of both parties and the amici, we

conclude that section 766.118 violates the Equal Protection Clause of the Florida

Constitution under the rational basis test. The statutory cap on wrongful death

noneconomic damages fails because it imposes unfair and illogical burdens on

injured parties when an act of medical negligence gives rise to multiple claimants.

In such circumstances, medical malpractice claimants do not receive the same



                                         -9-
rights to full compensation because of arbitrarily diminished compensation for

legally cognizable claims. Further, the statutory cap on wrongful death

noneconomic damages does not bear a rational relationship to the stated purpose

that the cap is purported to address, the alleged medical malpractice insurance

crisis in Florida.

                               Arbitrary Distinctions

       This Court previously reasoned in St. Mary’s Hospital, Inc. v. Phillipe, 769

So. 2d 961 (Fla. 2000), that the type of classification addressed in this case is

purely arbitrary and unrelated to a true state interest. We clearly announced in

Phillipe that 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. This inherently discriminatory

action and resulting invidious discrimination do not pass constitutional muster.

We stated:

              If we were to accept St. Mary’s contention that the Legislature
       intended to limit noneconomic damages to $250,000 per incident in
       the aggregate, then the death of a wife who leaves only a surviving
       spouse to claim the $250,000 is not equal to the death of a wife who
       leaves a surviving spouse and four minor children, resulting in five
       claimants to divide $250,000. We fail to see how this classification
       bears any rational relationship to the Legislature’s stated goal of
       alleviating the financial crisis in the medical liability industry. Such a
       categorization offends the fundamental notion of equal justice under
       the law and can only be described as purely arbitrary and unrelated to
       any state interest.



                                         - 10 -
Id. at 972 (emphasis supplied).

      The equal protection violation identified by Phillipe is evident in the present

case. The plain language of this statutory plan irrationally impacts circumstances

which have multiple claimants/survivors differently and far less favorably than

circumstances in which there is a single claimant/survivor and also exacts an

irrational and unreasonable cost and impact when, as here, the victim of medical

negligence has a large family, all of whom have been adversely impacted and

affected by the death. Three separate noneconomic damage determinations were

assessed by the federal district court based on the evidence presented. The

damages suffered by Ms. McCall’s parents were determined to be $750,000 each,

and Ms. McCall’s surviving son sustained damages determined to be $500,000.

Applying the cap, the federal court then reduced the amounts of damages so each

claimant would receive only half of his or her respective damages. Yet, if Ms.

McCall had been survived only by her son, he would have recovered the full

amount of his noneconomic damages: $500,000. Here, the cap delineated in

section 766.118 limited the recovery of a surviving child (and surviving parents)

simply because others also suffered losses. In a larger context, under section

766.118, the greater the number of survivors and the more devastating their losses

are, the less likely they are to be fully compensated for those losses.

      Other state supreme courts have struck down caps on noneconomic damages



                                        - 11 -
based upon a similar rationale. In holding that a $500,000 cap per plaintiff on

noneconomic damages in negligence and product liability actions violated the state

constitution, 4 the Supreme Court of Illinois aptly described how the cap operated

to discriminate against claimants who have suffered the most grievous injuries,

while benefitting the tortfeasor and/or the insurance company:

             In the first example . . . three plaintiffs are injured as a result of
      the same tortfeasor’s negligence. Plaintiff A is injured moderately,
      and suffers pain, disability and disfigurement for a month. Plaintiff B
      is severely injured and suffers one year of pain and disability.
      Plaintiff C is drastically injured, and suffers permanent pain and
      disability. . . . [I]t is further assumed that a jury awards plaintiffs A
      and B $100,000 in compensatory damages for noneconomic injuries.
      Plaintiff C receives $1 million for his permanent, lifelong pain and
      disability.
             . . . With respect to plaintiff C, [the challenged legislation]
      arbitrarily and automatically reduces the jury’s award for a lifetime of
      pain and disability, without regard to whether or not the verdict,
      before reduction, was reasonable and fair.
             The tortfeasors in this example are also treated differently,
      without any justification. The tortfeasor who injures plaintiffs A and
      B is liable for the full amount of fairly assessed compensatory
      damages. In contrast, [the challenged legislation] confers a benefit on
      the similarly situated tortfeasor who injures plaintiff C. This
      tortfeasor pays only a portion of fairly assessed compensatory
      damages because of the limitation [on noneconomic damages].

       4. The Supreme Court of Illinois concluded that the cap violated the special
legislation clause of the Illinois Constitution. Best v. Taylor Mach. Works, 689
N.E.2d 1057, 1078 (Ill. 1997). This clause “expressly prohibits the General
Assembly from conferring a special benefit or exclusive privilege on a person or a
group of persons to the exclusion of others similarly situated.” Id. at 1069. The
Supreme Court of Illinois noted that special legislation constitutional challenges
are generally “judged under the same standards applicable to an equal protection
challenge.” Id. at 1070-71.


                                         - 12 -
      Therefore, the statute discriminates between slightly and severely
      injured plaintiffs, and also between tortfeasors who cause severe and
      moderate or minor injuries.

Best v. Taylor Mach. Works, 689 N.E.2d 1057, 1075 (Ill. 1997) (emphasis

supplied). The Supreme Court of New Hampshire condemned on equal protection

grounds a $250,000 cap on noneconomic damages in medical malpractice cases,

concluding that it is “simply unfair and unreasonable to impose the burden of

supporting the medical care industry solely upon those persons who are most

severely injured and therefore most in need of compensation.” Carson v. Maurer,

424 A.2d 825, 837 (N.H. 1980), overruled on other grounds, Cmty. Res. for

Justice, Inc. v. City of Manchester, 917 A.2d 707, 721 (N.H. 2007).

      Section 766.118, Florida Statutes, has the effect of saving a modest amount

for many by imposing devastating costs on a few—those who are most grievously

injured, those who sustain the greatest damage and loss, and multiple claimants for

whom judicially determined noneconomic damages are subject to division and

reduction simply based upon the existence of the cap. Under the Equal Protection

Clause of the Florida Constitution, and guided by our decision in Phillipe, we hold

that to reduce damages in this fashion is not only arbitrary, but irrational, and we

conclude that it “offends the fundamental notion of equal justice under the law.”

Phillipe, 769 So. 2d at 972; see also id. at 971 (“Differentiating between a single

claimant and multiple claimants bears no rational relationship to the Legislature’s



                                        - 13 -
stated goal of alleviating the financial crisis in the medical liability insurance

industry.”).

      Our holding today is not inconsistent with the decisions in Samples v.

Florida Birth-Related Neurological Injury Compensation Ass’n, 114 So. 3d 912

(Fla. 2013), Mizrahi v. North Miami Medical Center, 761 So. 2d 1040 (Fla. 2000),

or University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993), because a review of

those cases reveals that they involved statutes or challenges which are

distinguishable from the present challenge to section 766.118. In Samples, the

statute at issue created funding and authorized a $100,000 award to parents under

the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), which

was structured with other benefits and provided compensation without regard to

fault for birth-related neurological injury claims. 114 So. 3d at 914-15; see also §

766.303, Fla. Stat. (2013). In rejecting an equal protection challenge on the basis

that the statute treats a parent who files for the $100,000 award alone differently

than parents who share or divide the award, this Court distinguished the decision in

Phillipe, upon which we rely today:

      Whereas the provision of the Medical Malpractice Act at issue in
      [Phillipe] expressly concerns fault-based noneconomic damages for
      survivors of the deceased, the Plan at issue here establishes a system
      of no-fault compensation. The no-fault character of the Plan sets the
      parental award provision apart from the statutory limitation on fault-
      based damages at issue in [Phillipe]. Limitations on damages that
      raise equal protection concerns under a fault-based system are
      dissimilar and appropriately viewed differently than limitations on

                                         - 14 -
      compensation under a system where eligible claimants are assured of
      a recovery without regard to fault.

114 So. 3d at 919. Here, as in Phillipe, section 766.118 concerns the award of

damages in a traditional fault-based action. Further, section 766.118 arbitrarily

reduces damages without regard to the fault of a tortfeasor simply based upon the

number of survivors who are entitled to recovery. This is clearly distinguishable

from the no-fault compensation award under the Plan at issue in Samples. The

Plan was created by the Florida Legislature with the express purpose of “providing

compensation, irrespective of fault, for birth-related neurological injury claims.” §

766.303(1), Fla. Stat. (2013) (emphasis supplied). We reiterate that the present

case does not involve a statutorily-created no-fault compensation plan. Thus, the

two statutory schemes are, quite simply, completely different and distinct.

Accordingly, Samples is distinguishable from the present case and, contrary to the

assertion of the dissent, does not control, or even inform, the outcome here.

      Mizrahi involved a statute that precluded adult children of wrongful death

victims from recovering noneconomic damages where the cause of death was

medical malpractice. 761 So. 2d at 1041. In rejecting an equal protection

challenge, we noted that under the common law an adult who was not dependant

on a parent had no action and could not recover damages for injuries to that parent.

Id. at 1042 (quoting Stewart v. Price, 718 So. 2d 205, 209 (Fla. 1st DCA 1998)).

When the Legislature created the right for adult children to recover damages for


                                        - 15 -
the injuries and wrongful death of a parent, it chose to exclude those children from

recovering noneconomic damages in one type of action (medical malpractice). Id.

We ultimately held that the statute, “which created a right of action for many while

excluding a specific class from such action, and which exclusion is rationally

related to controlling healthcare costs and accessibility,” did not violate equal

protection. Id. at 1043.

      Unlike Mizrahi, the statute under review here does not address and expand a

class of individuals eligible to recover noneconomic wrongful death damages.

Instead, it treats similarly situated, eligible survivors differently by reducing the

damages awarded without regard to the fault of the wrongdoer and based solely

upon a completely arbitrary factor, i.e., how many survivors are entitled to

recovery. The greater the number of survivors who are eligible to recover

noneconomic damages in a medical malpractice wrongful death action, the lesser

the award that each individual survivor will receive. Thus, the statute at issue in

Mizrahi is also distinguishable from the noneconomic damages caps in section

766.118.

      Finally, in Echarte this Court considered whether a $250,000 cap on

noneconomic damages for medical malpractice claims where a party requested

arbitration violated the access to courts provision of the Florida Constitution. 618

So. 2d at 190, 193. In the present case, because we address only an equal



                                         - 16 -
protection challenge—not an access to courts challenge—Echarte is inapposite.

Nevertheless, the holding in Echarte that the cap was constitutional does not

impact our decision today. In upholding the constitutionality of the cap in medical

malpractice arbitration proceedings, this Court in Echarte noted that arbitration

provided commensurate benefits in exchange for the cap, such as saving the

expense of attorney fees and expert witnesses. Id. at 194. Conversely, under

section 766.118, survivors receive absolutely no benefit whatsoever from the cap

on noneconomic damages, but only arbitrary reductions based upon the number of

survivors.

      Moreover, the statute imposing the cap in Echarte was later addressed by

this Court in Phillipe. In Phillipe, we held that the cap applied per claimant rather

than per incident, and noted that to hold otherwise would create equal protection

concerns. 769 So. 2d at 971. In reaching this conclusion, we expressly stated that

“Echarte does not control our decision.” Id. Similarly, Echarte does not compel a

different result here. Rather, Phillipe, which recognized that Echarte did not

address a circumstance in which similarly situated survivors would receive

different, arbitrarily reduced noneconomic damage awards solely based upon the

number of survivors, is the decision which guides our analysis as to the

constitutionality of section 766.118. See Phillipe, 769 So. 2d at 971 (noting that




                                        - 17 -
“the loss of a survivor is not diminished by the mere fact that there are multiple

survivors”).

      Despite our discussion of Phillipe, we emphasize that, contrary to the

assertion in the concurring in result opinion, our examination of the validity of

section 766.118 cannot simply conclude without further analysis. The statute at

issue in Phillipe, related to damage limits, is not identical to the factors in the

present case. Phillipe involved a very different statutory scheme, based upon

noneconomic damage awards in the arbitration context, a factual scenario not

presented here. Therefore, while Phillipe provides guidance and may be

considered persuasive, it is not dispositive of our equal protection analysis today.

We cannot take the drastic step of invalidating a statute simply by declaring it so

and relying upon an unrelated case which evaluated an unrelated statute. Instead, a

comprehensive equal protection analysis of the cap on damages in section 766.118

is required under Florida law to resolve the certified question. Accordingly, a

description of the elements of an equal protection review, and our evaluation of

those elements, must follow. This is a consideration of the facts and circumstances

surrounding the challenged statute and the subject matter it addresses.

                      The Alleged Medical Malpractice Crisis

      In addition to arbitrary and invidious discrimination between medical

malpractice claimants, the cap on noneconomic damages also violates the Equal



                                          - 18 -
Protection Clause of the Florida Constitution because it bears no rational

relationship to a legitimate state objective, thereby failing the rational basis test.

See Fla. Nurses Ass’n, 508 So. 2d at 319. Although the concurring in result

opinion seeks to avoid a full proper legal analysis, contrary to the view of that

opinion, no single prior case provides a complete answer and none provides any

legal analysis which affords a basis for an answer to the question we must address.

Our precedent expressly states that a proper equal protection analysis under the

rational basis test “requires this Court to determine: (1) whether the challenged

statute serves a legitimate governmental purpose, and (2) whether it was

reasonable for the Legislature to believe that the challenged classification would

promote that purpose.” Warren v. State Farm Mut. Auto. Ins. Co., 899 So. 2d

1090, 1095 (Fla. 2005) (emphasis supplied); see also Zapo v. Gilreath, 779 So. 2d

651, 655 (Fla. 5th DCA 2001); Fla. Dept. of Ins. v. Keys Title & Abstract Co., 741

So. 2d 599, 602 (Fla. 1st DCA 1999). Thus, under 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. Further, that concurring in

result opinion argues that only a single decision which does not set forth a proper



                                          - 19 -
analysis be applied. However, we would abandon our obligation under Warren

were we to simply rubber stamp the Legislature’s asserted justification for the

cap—as the concurring in result and dissenting opinions suggest we do—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 first prong of Warren. 899 So. 2d at 1095 (emphasis

supplied).

      The Florida Legislature attempted to justify the cap on noneconomic

damages by claiming that “Florida is in the midst of a medical malpractice

insurance crisis of unprecedented magnitude.” Ch. 2003-416, § 1, Laws of Fla., at

4035. The Legislature asserted that the increase in medical malpractice liability

insurance premiums has resulted in physicians leaving Florida, retiring early from

the practice of medicine, or refusing to perform high-risk procedures, thereby

limiting the availability of health care. Id.

      In enacting the statutory cap on noneconomic damages, the Legislature

relied heavily on a report prepared by the Governor’s Select Task Force on

Healthcare Professional Liability Insurance (Task Force), which concluded that

“actual and potential jury awards of noneconomic damages (such as pain and

suffering) are a key factor (perhaps the most important factor) behind the



                                         - 20 -
unavailability and un-affordability of medical malpractice insurance in Florida.”

Report of Governor’s Select Task Force on Healthcare Professional Liability

Insurance (Task Force Report) (Jan. 29, 2003), at xvii.

      To evaluate the constitutionality of the cap on noneconomic damages

imposed by section 766.118, we are not required to accept the findings of the

Legislature or the Task Force at face value. Instead:

             While courts may defer to legislative statements of policy and
      fact, courts may do so only when those statements are based on actual
      findings of fact, and even then courts must conduct their own inquiry:

                    The general rule is that findings of fact made by
             the legislature are presumptively correct. However, it is
             well-recognized that the findings of fact made by the
             legislature must actually be findings of fact. They are not
             entitled to the presumption of correctness if they are
             nothing more than recitations amounting only to
             conclusions and they are always subject to judicial
             inquiry.

N. Fla. Women’s Health & Counseling Serv., Inc. v. State, 866 So. 2d 612, 627

(Fla. 2003) (quoting Moore v. Thompson, 126 So. 2d 543, 549 (Fla. 1960)) (some

emphasis supplied).

      Our consideration of the factors and circumstances involved demonstrates

that the conclusions reached by the Florida Legislature as to the existence of a

medical malpractice crisis are not fully supported by available data. Instead, the

alleged interest of health care being unavailable is completely undermined by

authoritative government reports. Those government reports have indicated that


                                        - 21 -
the numbers of physicians in both metropolitan and non-metropolitan areas have

increased. For example, in a 2003 report, the United States General Accounting

Office found that from 1991 to 2001, Florida’s physician supply per 100,000

people grew from 214 to 237 in metropolitan areas and from 98 to 117 in

nonmetropolitan areas, or percentage increases of 10.7 and 19, respectively.

Physician Workforce: Physician Supply Increased in Metropolitan and

Nonmetropolitan Areas but Geographic Disparities Persisted, No. GAO-04-124,

(Oct. 31, 2003), at 23, available at http://www.gao.gov/new.items/d04124.pdf.

Thus, during this purported crisis, the numbers of physicians in Florida were

actually increasing, not decreasing.

      Additionally, an analysis of claim activity certainly does not provide a

rational basis for the clear discrimination presented by the legislation. Although

assertions of a malpractice insurance crisis are often accompanied by images of

runaway juries entering verdicts in exorbitant amounts of noneconomic damages,

see, e.g., Task Force Report at xvii, one study revealed that in Florida cases which

resulted in payments of $1 million or more over a fourteen-year period, only 7.5

percent involved a jury trial verdict. See Neil Vidmar, Kara MacKillop & Paul

Lee, Million Dollar Medical Malpractice Cases in Florida: Post-Verdict and Pre-




                                       - 22 -
Suit Settlements, 59 Vand. L. Rev. 1343, 1345-46 (2006). 5 Moreover, 10.1 percent

of settlements that involved payments of $1 million or more were resolved without

a legal action ever being filed. Id. at 1360. Such statistics led the authors of the

study to conclude that jury trials constitute only a very small portion of medical

malpractice payments. Id. at 1345. The authors also concluded that “tort reform

efforts focused on jury verdicts are misdirected, at least with respect to $1 million

verdicts in Florida. Not only do jury trials constitute only a small portion of $1

million payments, [but] the settlements following verdicts tend to be substantially

less than the jury awards.” Id. at 1381 (emphasis supplied). 6 Thus, available data

indicates the Task Force’s finding that noneconomic damage awards by juries are a

primary cause of the purported medical malpractice crisis in Florida is most

questionable.

      Even the Task Force whose report was relied upon by the Florida

Legislature employed extremely equivocal language and speculation when


        5. Further, a national study reflects that from 1991 until 2003, judgments at
trial accounted for only 4 percent of all malpractice payments. Amitabh Chandra,
Shantanu Nundy, & Seth A. Seabury, The Growth Of Physician Medical
Malpractice Payments: Evidence From The National Practitioner Data Bank,
Health Affairs at W5-240, W5-243 (May 31, 2005), available at
http://content.healthaffairs.org/content/early/2005/05/31/hlthaff.w5.240.full.pdf+ht
ml.

      6. According to the authors, with one exception, cases with verdicts in
excess of $4 million settled for, on average, 37 percent less than the verdict.
Million Dollar Medical Malpractice Cases in Florida, 59 Vand. L. Rev. at 1380.


                                         - 23 -
describing the existence of a crisis. For example, the Task Force stated that it

“believes” the alleged crisis “could get worse in the coming years. . . . Medical

malpractice insurance premiums may become unaffordable, and/or coverage may

become unavailable at any price to many physicians and hospitals.” See Task

Force Report, at 211-12 (emphasis supplied). Further, despite blaming “actual and

potential jury awards of noneconomic damages” for this ominous prediction, Task

Force Report at xvii, the Task Force recognized that there are other explanations

for the dramatic rise in medical malpractice insurance premiums. For example, the

Task Force Report notes that in the opinion of Joanne Doroshow, Executive

Director of the Center for Justice and Democracy:

      [T]his so-called “crisis” is nothing more than the underwriting cycle
      of the insurance industry, and driven by the same factors that caused
      the “crises” in the 1970s and 1980s. According to . . . Doroshow,
      with each crisis, there has been a severe drop in the investment
      income for insurers, which has been compounded by sever [sic]
      under-pricing of insurance premiums in the prior years. . . . [D]uring
      years of high interest rates or excellent insurer profits that are invested
      for maximum return, the insurance companies engage in fierce
      competition for premium dollars by selling under-priced premiums
      and insuring very poor risks. Then . . . when investment income
      drops, either due to increases in interest rates or the stock market, or
      due to low income resulting from unbearably low premiums, the
      insurance industry responds by sharply increasing premiums and
      reducing coverage.
             . . . The tort reform changes in the 1980s had nothing to do with
      the flattening of rates. The flattening was caused instead by
      modulations in the insurance cycle throughout the country.

Task Force Report, at 64 (footnotes omitted). The Task Force itself



                                        - 24 -
acknowledged:

             Medical malpractice insurance has been subject to sudden jolts,
      both in availability of coverage and cost. An entire cycle has been
      defined as the period of years in which insurer underwriting profits
      cycle from above average to below average. These cycles have
      always occurred in the insurance industry, particularly in medical
      malpractice insurance.

Task Force Report, at 31 (emphasis supplied) (footnotes omitted). See also Tom

Baker, THE MEDICAL MALPRACTICE MYTH 53-54 (2005) (“[T]he two most recent

medical liability insurance crises did not result from sudden or dramatic increases

in medical malpractice settlements or jury verdicts. . . . [T]he crises resulted from

dramatic increases in the amount of money that the insurance industry put in

reserve for claims. Those reserve increases were so big because the insurance

industry systematically underreserved in the years leading up to the crisis.”).

      Finally, testimony before the Senate Judiciary Committee and debate within

the Florida Senate raised questions concerning the magnitude of any purported

health care crisis. With regard to the former, the deputy director of the Florida

Office of Insurance Regulation testified he had found no evidence to suggest that

there had been a large increase in the number of frivolous lawsuits filed in Florida,

nor was there any evidence of excessive jury verdicts in the prior three years.

Testimony of Steve Roddenberry, Senate Judiciary Committee Meeting, July 14,

2003, at 3, 10.

      During the subsequent floor debate, the following dialogue occurred


                                        - 25 -
between a senator and the Chairman of the Senate Judiciary Committee:

             SENATOR: Were you able to determine whether or not there
      is an access to health care crisis in terms of the number of doctors
      licensed to practice medicine, the number of hospital closures or the
      number of emergency rooms closed?
             ....
             CHAIRMAN: [T]his is not what I found. What the testimony
      was from both the Department of Health, the Agency for Health Care
      Administration and various other people . . . was that there, in fact, are
      more doctors licensed to practice today in the State of Florida than
      there were five years ago.
             Applications to the medical schools in the State of Florida are
      up and have been up consistently for the past, for the past number of
      years.
             And also that emergency rooms have not been closing as a
      result of medical malpractice.
             As a matter of fact, the Department of Health and the Agency
      for Health Care Administration both testified under oath that they
      could not cite any incidents where because of a medical malpractice
      crisis patients were denied some type of care or directed someplace
      else.

Senate Floor Debate Tr. 22-23 (Aug. 13, 2003) (emphasis supplied). Further

support for the testimony of the committee chairman exists in a report prepared by

the United States General Accounting Office, which states:

      Reports of physician departures in Florida were anecdotal, not
      extensive, and in some cases we determined them to be inaccurate.
      For example, state medical society officials told us that Collier and
      Lee counties lost all of their neurosurgeons due to malpractice
      concerns; however, we found at least five neurosurgeons currently
      practicing in each county as of April 2003. Provider groups also
      reported that malpractice pressures have recently made it difficult for
      Florida to recruit or retain physicians of any type; however, over the
      past 2 years the number of new medical licenses issued has increased
      and physicians per capita has remained unchanged.



                                        - 26 -
Medical Malpractice: Implications of Rising Premiums on Access to Health Care,

No. GAO-03-836, (Aug. 2003), at 17-18, available at

http://www.gao.gov/new.items/d03836.pdf.

      Moreover, for those doctors who are leaving or have left Florida, there was

no concrete evidence to demonstrate that high malpractice premiums were the

cause of that departure. During her testimony before the Senate Judiciary

Committee, the CEO of the Florida Medical Association testified with regard to

two cases where physicians had relocated from Florida to North Carolina and New

York, after which the following testimony ensued:

             SENATOR: The [American Medical Association] has
      identified the states with national [crises], medical malpractice. One
      of the states is North Carolina. One of the states is New York. So it
      seems like you get some physicians that are leaving Florida for states
      that are also considered by the AMA to be in national crisis. Why?
             CEO: Maybe they haven’t figured that out yet.
             CHAIRMAN: You better call the guy from North Carolina
      and—
             CEO: I haven’t got the answer to that. I haven’t talked to any
      of these people individually.
             CHAIRMAN: You better call the guy from North Carolina and
      tell him they don’t have caps there either.

Testimony of Sandra Mortham, Senate Judiciary Committee Meeting, July 14,

2003, at 117, 129-30.

      Based upon these statements and reports, although medical malpractice

premiums in Florida were undoubtably high in 2003, we conclude the Legislature’s

determination that “the increase in medical malpractice liability insurance rates is


                                        - 27 -
forcing physicians to practice medicine without professional liability insurance, to

leave Florida, to not perform high-risk procedures, or to retire early from the

practice of medicine” is unsupported. Ch. 2003-416, §1, Laws of Fla., at 4035.

Thus, the finding by the Legislature and the Task Force that Florida was in the

midst of a bona fide medical malpractice crisis, threatening the access of Floridians

to health care, is dubious and questionable at the very best.

               The Impact of Damage Caps on the Alleged Crisis

      Even if these conclusions by the Legislature are assumed to be true, and

Florida was facing a dangerous risk of physician shortage due to malpractice

premiums, we conclude that section 766.118 still violates Florida’s Equal

Protection Clause because the available evidence fails to establish a rational

relationship between a cap on noneconomic damages and alleviation of the

purported crisis. See generally Fla. Nurses Ass’n, 508 So. 2d at 319 (stating that

for legislation to be constitutional under the rational basis standard, it must bear a

rational and reasonable relationship to a legitimate state objective).

      Reports have failed to establish a direct correlation between damages caps

and reduced malpractice premiums. Weiss Ratings, which evaluates the

performance of the malpractice insurance industry, has detailed two particularly

salient findings. First, based upon data acquired from 1991 until 2002, the

median medical malpractice premiums paid by physicians in three high-risk



                                         - 28 -
specialties—internal medicine, general surgery, and obstetrics/gynecology—rose

by 48.2 percent in states that have damages caps, but in states without caps, the

median annual premium increased at a slower rate—by 35.9 percent. Martin D.

Weiss, Melissa Gannon & Stephanie Eakins, Medical Malpractice Caps: The

Impact of Non-Economic Damage Caps on Physician Premiums, Claims Payout

Levels, and Availability of Coverage, at 7-8 (rev. ed. June 3, 2003), available at

http://www.weissratings.com/pdf/malpractice.pdf. Second, the study noted that

among states with caps on damages, only 10.5 percent (two of nineteen states with

caps) experienced static or declining medical malpractice premium rates following

the imposition of caps. In contrast, among states without damages caps, 18.7

percent (six of thirty-two states 7 without caps) experienced static or declining

medical malpractice premiums. Id. at 8.

      Additionally, Robert White, the President of First Professionals Insurance

Company (FPIC), testified during a Senate Judiciary Committee meeting that a

$500,000 cap on noneconomic damages would achieve “virtually nothing” with

regard to stabilizing medical malpractice insurance rates. Testimony of Robert

White, Senate Judiciary Committee Meeting, July 14, 2003, at 48, 50-51. Earlier

in 2003, Mr. White informed a group of Palm Beach physicians: “No responsible

       7. The study states that “the District of Columbia is being referred to as a
‘state’ since it effectively operates as such with regard to insurance regulation.”
Medical Malpractice Caps, at 7 n.4.


                                        - 29 -
insurer can cut its rates after a bill [that caps noneconomic damages at $250,000]

passes.” Phil Galewitz, “Underwriter Gives Doctors Dose of Reality,” Palm Beach

Post, Jan. 29, 2003, at 1A. Mr. White advised that “[e]ven if a cap is approved by

the legislature and survives the likely legal challenge . . . it would yield on average

only a 16 percent premium cut.” Id. (emphasis supplied). Interestingly, during his

testimony before the Senate Judiciary Committee, Mr. White acknowledged that in

2002, the experience of FPIC was more positive in Florida than in Missouri, a state

which at that time had implemented caps on damages. Testimony of Robert White,

Senate Judiciary Committee Meeting, at 59.

      Members of the Florida Senate and the House of Representatives also

expressed doubt as to whether a noneconomic damages cap would have the effect

of reducing premiums. During floor debate in the Senate, the following dialogue

between a senator and the Chairman of the Senate Judiciary Committee occurred:

              SENATOR: [W]as there any testimony from either FPIC or
      any other insurance company that may have testified . . . that they
      would immediately reduce rates if they got a cap on damages?
              SENATE PRESIDENT: [Chairman] to respond.
              CHAIRMAN: No.
              ....
              SENATOR: Was there any testimony the only way that you
      could reduce malpractice premiums was to cap damages?
              SENATE PRESIDENT: [Chairman to respond.]
              CHAIRMAN: No.
              ....
              SENATOR: . . . It’s my recollection, and maybe this might
      help [the Chairman], I remember a Mr. Bob White, representing FPIC,
      in testimony relative to the caps said, no, there wouldn’t be an

                                         - 30 -
      immediate reduction in medical malpractice premiums due to caps,
      but as soon as they would be affirmed by a Court, there would be an
      immediate reduction available.
              ....
              CHAIRMAN: Senator . . . that was not the testimony given by
      Mr. White. I believe he said that bad faith and a series of other things
      had to be there, so the answer is no, it was not by placing a $250,000
      cap that would give a reduction.
              ....
              [T]he question was very specific, whether or not caps, whether
      or not Mr. White said that caps would reduce insurance rates. That
      was the question.
              The answer is, he said no. I have the transcripts on my desk,
      and if you would care to show me where it says otherwise, I would be
      happy to say so.
              ....
              What he did say was you have to add several variables, bad
      faith is one of them and I believe there were others. So if the question
      is on caps, the answer is no.

Senate Floor Debate Tr. 45-47, 49 (Aug. 13, 2003). Further, during floor debate in

the House of Representatives, one representative expressed concern that if the

Florida Legislature implements a cap on noneconomic damages, there is no

requirement in the bill that insurers pass any savings onto physicians. House Floor

Debate Tr. 38-39 (Aug. 13, 2003) (“[A]t the end of the day, actually, [the insurance

companies] don’t have to pay anything back to the doctors. It’s just a windfall, and

there’s no provision in the bill that says otherwise.”).

      The concerns of that representative were very perceptive and were not

unfounded. While the cap on noneconomic damages limits the amount of money

that insurance companies must pay injured victims of medical malpractice, section



                                         - 31 -
766.118 does not require insurance companies to use the acquired savings to lower

malpractice insurance premiums for physicians, and the argument and reliance by

the Respondent on rate reduction statutes is misplaced. When the statutory cap on

noneconomic damages was first enacted, the legislation contained a provision,

codified at section 627.062(8)(a)1., Florida Statutes (2003), that simply required

the Florida Office of Insurance Regulation (FLOIR) to calculate a “presumed

factor that reflects the impact that the changes contained in such legislation will

have on rates for medical malpractice insurance and shall issue a notice informing

all insurers writing medical malpractice coverage of such presumed factor.” Ch.

2003-416 § 40, Laws of Fla, at 4078. There was no mandated rate reduction.

After FLOIR issued a notice of the presumed factor, all medical malpractice

insurance companies that offered coverage in Florida were directed to submit a rate

filing for medical malpractice insurance that reflected “an overall rate reduction at

least as great as the presumed factor.” § 627.062(8)(a)2., Fla. Stat. (2003).

      Although at first glance this statutory subsection may appear to compel

medical malpractice insurance companies to reduce their rates in response to the

2003 legislation, FLOIR nonetheless advised that “[e]ven after application of the

presumed factor, we anticipate insurers will file for rate increases.” Press Release,

Florida Office of Insurance Regulation, Office of Insurance Regulation Releases

Presumed Factor (Nov. 10, 2003), available at



                                        - 32 -
http://www.floir.com/PressReleases/viewmediarelease.aspx?id=1316. Moreover,

despite any intended moderation of medical malpractice premiums based upon the

calculation of the presumed factor, the 2013 Annual Report on Medical

Malpractice Financial Information, Closed Claim Database and Rate Filings,

prepared by FLOIR compared the premiums of Florida doctors in four specialties

(family practice, obstetrics, emergency, and orthopedics) with other sampled states

and concluded that “Florida is either the highest (of nine states) or the second

highest state as far as premiums go in all but one of the scenarios.” 2013 FLOIR

Annual Report (Oct. 1, 2013) at 57-58, available at

http://www.floir.com/Office/DataReports.aspx#rec (CY2012). Therefore, despite

assertions that the presumed factor created in section 627.062(8)(a) caused massive

rate reductions by medical malpractice insurers to pass savings onto their

customers, the data suggests otherwise. Subdivision (8) was even repealed from

section 627.062 in 2011, having been designated “obsolete” by the Legislature.

Ch. 2011-39, § 12, Laws of Fla., at 514, 536-37.

       A number of state courts have expressed concern that without a statutory

mandate that insurance companies lower their insurance premiums in response to

tort reform, the savings resulting from reforms such as damages caps may simply

increase insurance company profits. In Zeier v. Zimmer, Inc., 152 P.3d 861 (Okla.

2006), the Oklahoma Supreme Court held that a statute requiring a medical



                                        - 33 -
malpractice claimant to obtain an affidavit of merit from a qualified expert as a

prerequisite to filing an action was unconstitutional under the Oklahoma

Constitution. See id. at 874. While Zeier did not address caps, we find an

observation of the Oklahoma Supreme Court to be just as applicable to caps on

noneconomic damages:

      [An] unanticipated result of statutes similar to Oklahoma’s scheme
      has been the creation of a windfall for insurance companies . . . which
      are not required to implement post-tort reform rates decreasing the
      cost of medical malpractice insurance to physicians. These companies
      happily pay less out in tort-reform states while continuing to collect
      higher premiums from doctors.

Id. at 869-70 (footnote omitted).

      Moreover, the Texas Supreme Court has strongly questioned whether caps

on damages will lower insurance premiums. In Lucas v. United States, 757

S.W.2d 687 (Tex. 1988), the court noted that when the Texas Legislature enacted

medical malpractice damages caps, it stated that “adoption of certain modifications

in the medical, insurance, and legal systems . . . may or may not have an effect on

the rates charged by insurers for medical professional liability coverage.” Id. at

691. In striking down the caps as unconstitutional, the court concluded that “[i]n

the context of persons catastrophically injured by medical negligence, we believe it

is unreasonable and arbitrary to limit their recovery in a speculative experiment to

determine whether liability insurance rates will decrease.” Id. We completely

agree with and adopt the position of the Supreme Court of Texas.


                                        - 34 -
      We conclude that the record and available data fail to establish a legitimate

relationship between the cap on wrongful death noneconomic damages and the

lowering of medical malpractice insurance premiums. Accordingly, we hold that

section 766.118 fails the rational basis test and violates the Equal Protection Clause

of the Florida Constitution. See generally Fla. Nurses Ass’n, 508 So. 2d at 319.

             The Current Status of Medical Malpractice in Florida

      Lastly, even if a “crisis” existed when section 766.118 was enacted, a crisis

is not a permanent condition. Conditions can change, which remove or negate the

justification for a law, transforming what may have once been reasonable into

arbitrary and irrational legislation. The United States Supreme Court has

recognized 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.” Chastleton Corp. v. Sinclair,

264 U.S. 543, 547-48 (1924). See also Ferdon ex rel. Petrucelli v. Wisconsin

Patients Comp. Fund, 701 N.W.2d 440, 468 (Wisc. 2005) (“A statute may be

constitutionally valid when enacted but may become constitutionally invalid

because of changes in the conditions to which the statute applies. A past crisis

does not forever render a law valid.” (footnotes omitted)). Thus, even if section

766.118 may have been rational when it was enacted based on information that

was available at the time, it will no longer be rational where the factual premise



                                        - 35 -
upon which the statute was based has changed. It is for this reason that Florida

courts consider both pre- and post-enactment data in assessing the continued

rationality of a statute.

       Having evaluated current data, we conclude that no rational basis exists to

justify continued application of the noneconomic damages cap of section 766.118.

The 2011 State Physician Workforce Data Book prepared by the Association of

American Medical Colleges (AAMC) reflects that in 2010, there were 254.8 active

physicians for every 100,000 people in Florida, a number higher than twenty-eight

other states. AAMC, 2011 State Physician Workforce Data Book, at 9 (Nov.

2011), available at

https://www.aamc.org/download/263512/data/statedata2011.pdf. Further, data

collected through December 31, 2010, reflects that 59.4 percent of active

physicians who completed medical school in Florida are practicing in Florida. Id.

at 53. Only three other states retained a higher percentage of medical students. Id.

       Additionally, the Office of the State Courts Administrator (OSCA) reports

that medical malpractice filings in Florida have decreased significantly. During

fiscal year 2003-04, a total of 5,829 professional malpractice and product liability

actions were filed in Florida circuit courts, comprising 3.2 percent of all civil




                                         - 36 -
actions filed that year. 8 However, during fiscal year 2011-12, only 2,313 such

actions were filed in Florida circuit courts, a decrease of more than 60 percent, and

comprising just 0.76 percent of all civil actions filed. The Annual Reports on

Medical Malpractice Financial Information prepared by the Florida Office of

Insurance Regulation (FLOIR Annual Report) reflect a similar decrease in both the

number of claims and in the amount of noneconomic damages paid by medical

malpractice insurance companies. For example, 3,574 medical malpractice claims

were closed in 2004, and insurance companies paid $195,132,457 in noneconomic

damages. 2005 FLOIR Annual Report (Oct. 1, 2005) at 40, 44, available at

http://www.floir.com/Office/DataReports.aspx#rec (CY2004). On the other hand,

in 2012 only 2,491 medical malpractice claims were closed, and insurance

companies paid $140,941,965 in noneconomic damages, decreases of 30.3 percent

and 27.7 percent, respectively. 2013 FLOIR Annual Report (Oct. 1, 2013) at 10,

88, available at http://www.floir.com/Office/DataReports.aspx#rec (CY2012).

      Finally, and perhaps most telling, is that the leading companies selling

medical malpractice insurance in Florida are far from struggling financially. The

2013 FLOIR Annual Report notes:

      It is estimated that the Florida medical malpractice line of business
      standing alone generated a direct (before reinsurance) return on

      8. The OSCA combines these two types of legal actions for statistical
purposes.


                                        - 37 -
      surplus of 14.0% in 2012. This return compares very positively with
      the average countrywide all-lines net return on surplus for Florida’s
      leading medical malpractice writers of 5.3% (down from 7.1% in
      2011, but not far out of line with market returns in 2012). This
      represents the ninth consecutive year of profitability. . . . Related
      financial information in the report also suggests that the leading
      malpractice carriers as a class are financially strong.

2013 FLOIR Annual Report at 8-9 (emphasis supplied). The most recent records

and reports of the Florida Office of Insurance Regulation, and the annual reports of

medical malpractice insurers, confirm that not only has the number of insurers

providing medical malpractice insurance coverage increased, see 2012 FLOIR

Annual Report at 40-41 and 2013 FLOIR Annual Report at 44, the profits would

probably shock most concerned. Indeed, between the years of 2003 and 2010, four

insurance companies that offered medical malpractice insurance in Florida

cumulatively reported an increase in their net income of more than 4300 percent. 9



       9. The four insurance companies were The Doctors Company, Mag Mutual
Insurance Company, ProAssurance Corporation, and First Professionals Insurance
Company. Each of the three remaining insurance companies posts its annual
reports online. See http://www.thedoctors.com/TDC/Financials/CON_ID_000780;
http://www.magmutual.com/annual-reports; and
http://www.proassurance.com/investorrelations/annualreport.aspx. In October
2011, the Doctors Company merged with the parent company of FPIC. See
http://www.thedoctors.com/TDC/PressRoom/PressContent/CON_ID_004471.
Since FPIC is no longer an independent entity, the 2003 annual report for FPIC is
not available on the website for a specific insurance company, but is available at
http://www.rocketfinancial.com/IRVault.aspx?fID=6352&tID=1002. Every
insurance company authorized to conduct business in Florida is required to file an
annual statement “of its financial condition, transactions, and affairs” with the
Office of Insurance Regulation. Fla. Admin. Code R. 69O-137.001(2)(a).


                                       - 38 -
With such impressive net income estimates, the insurance industry should pass

savings onto Florida physicians in the form of reduced malpractice insurance

premiums, 10 and it should no longer be necessary to continue punishing those most

seriously injured by medical negligence by limiting their noneconomic recovery to

a fixed, arbitrary amount.

      Thus, 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. See generally Fla. Nurses Ass’n, 508 So. 2d at 319.

At the present time, the cap on noneconomic damages serves no purpose other than

to arbitrarily punish the most grievously injured or their surviving family members.

Moreover, it has never been demonstrated that there was a proper predicate for

imposing the burden of supporting the Florida legislative scheme upon the

shoulders of the persons and families who have been most severely injured and

died as a result of medical negligence. Health care policy that relies upon



      10. Despite such increases in net income, in 2012 one medical malpractice
insurance company nonetheless charged obstetricians in Miami-Dade County more
than $190,000 for $1 million of coverage. See 2013 FLOIR Annual Report at 57.
The company charged obstetricians in other Florida counties approximately
$98,000 for the same coverage. Id. at 58. During 2012, the same company
charged orthopedists in Miami-Dade County more than $115,000 for $1 million of
coverage, whereas orthopedists in other Florida counties were charged
approximately $59,000. Id. at 57-58.


                                         - 39 -
discrimination against Florida families is not rational or reasonable when it

attempts to utilize aggregate caps to create unreasonable classifications.

Accordingly, and for each of these reasons, the cap on wrongful death

noneconomic damages in medical malpractice actions does not pass constitutional

muster.

                 THE REMAINING CERTIFIED QUESTIONS

      We conclude that the remaining certified questions need not be addressed.

With regard to the second and third questions, the provision of the Florida

Constitution that governs access to courts protects those rights which existed either

at common law or by statute prior to the adoption of the 1968 Declaration of

Rights. See Kluger v. White, 281 So. 2d 1, 4 (Fla. 1973). Similarly, the right to

trial by jury is guaranteed only in those cases where the right was enjoyed at the

time the first Constitution of Florida became effective in 1845. In re 1978

Chevrolet Van, 493 So. 2d 433, 434 (Fla. 1986).

      At common law, Florida did not recognize a cause of action for wrongful

death. White v. Clayton, 323 So. 2d 573, 575 (Fla. 1975) (“An action for wrongful

death was not authorized at common law, and is a creation of the legislature.”).

Moreover, although the Florida Legislature authorized an action for wrongful death

prior to 1968, see, e.g., § 768.01, Fla. Stat. (1941), the right of survivors to recover

noneconomic damages, such as pain and suffering, did not become part of Florida



                                         - 40 -
statutory law until 1972. Lifemark Hosps. of Fla., Inc. v. Afonso, 4 So. 3d 764,

769 (Fla. 3d DCA), cert. denied, 23 So. 3d 711 (Fla. 2009).

      Section 766.118 caps noneconomic damages in both wrongful death medical

malpractice actions and personal injury medical malpractice actions where the

victim survives. This case involves only a wrongful death medical malpractice

action. Because the right of Ms. McCall’s parents and son to recover noneconomic

damages for her death did not exist prior to 1972, their access to courts and jury

trial challenges to section 766.118 are not cognizable. Accordingly, to answer the

second and third questions certified by the federal appellate court with regard to

personal injury medical malpractice actions would constitute an advisory opinion,

which we are not authorized to provide. Sarasota-Fruitville Drainage Dist. v.

Certain Lands Within Said Dist., 80 So. 2d 335, 336 (Fla. 1955) (“We have

repeatedly held that this Court was not authorized to render advisory opinions

except in the instances required or authorized by the Constitution.”).

      Our decision not to answer the fourth certified question addressing the

separation of powers challenge is based upon a similar rationale. As previously

stated, with regard to wrongful death, the Florida Legislature created a cause of

action where none previously existed. Clayton, 323 So. 2d at 575. However,

section 766.118 addresses both personal injury medical malpractice actions, which

previously existed under the common law, Maggio v. Fla. Dep’t of Labor and



                                        - 41 -
Emp. Security, 899 So. 2d 1074, 1081 n.5 (Fla. 2005) (noting that “unlike causes

of action that are solely the creature of statute, medical malpractice actions existed

as common law torts”), and wrongful death medical malpractice actions, which are

purely a statutory creation. Were we to answer the fourth certified question, it

would constitute, in part, an impermissible advisory opinion. Sarasota-Fruitville,

80 So. 2d at 336. For this reason, we decline to do so.

                                  CONCLUSION

      Based on the foregoing, we answer the first rephrased certified question in

the affirmative and hold that the cap on wrongful death noneconomic damages in

section 766.118, Florida Statutes, violates the Equal Protection Clause of the

Florida Constitution. We defer answering the remaining certified questions. We

return this case to the Eleventh Circuit Court of Appeals.

      It is so ordered.

LABARGA, J., concurs.
PARIENTE, J., concurs in result with an opinion, in which QUINCE and PERRY,
JJ., concur.
POLSTON, C.J., dissents with an opinion, in which CANADY, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.


PARIENTE, J., concurring in result.

      I agree with the plurality opinion authored by Justice Lewis that the statutory

cap on wrongful death noneconomic damages provided by the medical malpractice

                                        - 42 -
statute violates the Equal Protection Clause of the Florida Constitution. Like the

plurality, I would therefore answer the first rephrased certified question in the

affirmative and decline to answer the remaining questions certified by the Eleventh

Circuit Court of Appeals. In fact, as I explain, I agree with much of the plurality

opinion that declares the statutory damages cap unconstitutional as applied to

wrongful death actions.

      However, I do not fully join in the plurality opinion because I respectfully

disagree with the plurality’s application of the rational basis test in this case.

Specifically, my primary disagreement is with the decision not to afford deference

to the legislative findings in the absence of a showing that the findings were

“clearly erroneous.” Univ. of Miami v. Echarte, 618 So. 2d 189, 196 (Fla. 1993).

      Although this Court is not bound to blindly defer to all legislative findings, I

disagree with the plurality’s independent evaluation and reweighing of reports and

data, including information from legislative committee meetings and floor debate,

as well as an article published in the Palm Beach Post newspaper, as part of its

review of whether the Legislature’s factual findings and policy decisions as to the

alleged medical malpractice crisis were fully supported by available data. See,

e.g., plurality op. at 25-28 (Lewis, J.) (quoting from the legislative floor debate and

committee meeting testimony and reviewing studies); id. at 29-31 (citing to and

quoting from a newspaper article and quoting additional legislative committee



                                         - 43 -
testimony and floor debate). I emphasize, however, that although I do not fully

join in the plurality’s application of the rational basis test, I agree with the ultimate

conclusion that the arbitrary reduction of survivors’ noneconomic damages in

wrongful death cases based on the number of survivors lacks a rational relationship

to the goal of reducing medical malpractice premiums.

      My analysis proceeds in the following way. I first set forth the background

of the case, which frames the specific constitutional question in need of this

Court’s resolution—a resolution the plurality and I both agree on. With this

context in mind, I then explain how and why the plurality and I agree as to the as-

applied unconstitutionality of the statutory cap on noneconomic damages in

wrongful death actions. Finally, I discuss where my legal analysis diverges from

the plurality’s and why, despite my agreement with the ultimate conclusion, I am

unable to fully join in the plurality opinion.

                                    I. Background

      As described in the findings of fact of the federal district court where this

litigation began, at the time of her death, Michelle McCall was a “bright, beautiful,

and healthy, 20-year-old woman” who tragically “bled to death in the presence of

all medical staff who were attending her” in the course of receiving prenatal care

and delivery services for her pregnancy at Eglin Air Force Base’s clinic. Estate of

McCall v. United States, 663 F. Supp. 2d 1276, 1283, 1291 (N.D. Fla. 2009). The



                                          - 44 -
facts of the medical malpractice and the circumstances of Michelle’s tragic death

are not in dispute or at issue before this Court. Rather, we are faced with a legal

question as to the constitutionality of Florida’s statutory limitation on

noneconomic damages to Michelle’s survivors, as set forth in section 766.118,

Florida Statutes.

      Section 766.118 provides in pertinent part as follows:

             (2) Limitation on noneconomic damages for negligence of
      practitioners.—
             (a) With respect to a cause of action for personal injury or
      wrongful death arising from medical negligence of practitioners,
      regardless of the number of such practitioner defendants,
      noneconomic damages shall not exceed $500,000 per claimant. No
      practitioner shall be liable for more than $500,000 in noneconomic
      damages, regardless of the number of claimants.
             (b) Notwithstanding paragraph (a), if the negligence resulted in
      a permanent vegetative state or death, the total noneconomic damages
      recoverable from all practitioners, regardless of the number of
      claimants, under this paragraph shall not exceed $1 million. In cases
      that do not involve death or permanent vegetative state, the patient
      injured by medical negligence may recover noneconomic damages not
      to exceed $1 million if:
             1. The trial court determines that a manifest injustice would
      occur unless increased noneconomic damages are awarded, based on a
      finding that because of the special circumstances of the case, the
      noneconomic harm sustained by the injured patient was particularly
      severe; and
             2. The trier of fact determines that the defendant’s negligence
      caused a catastrophic injury to the patient.
             (c) The total noneconomic damages recoverable by all
      claimants from all practitioner defendants under this subsection shall
      not exceed $1 million in the aggregate.

§ 766.118, Fla. Stat. (2005).



                                         - 45 -
      As to noneconomic damages, Michelle left as survivors her parents and her

baby boy, who was born at the same time Michelle died. The federal district court

found as follows as to the child’s noneconomic damages:

      W.W., who is now a healthy and active 3 1/2 year-old boy [as of
      2009], has been deprived the privilege of ever knowing his mother, of
      having her comfort and emotional support throughout his and her
      shared lifetimes, and of benefitting from her guidance and
      companionship. The negligent conduct in this case occurred within a
      matter of hours of his birth, but it leaves for W.W. a void in his life
      that will never truly be filled. His pain and suffering are difficult to
      quantify, but no one disputes the magnitude of his loss. On the other
      hand, the court is mindful that W.W.’s pain is necessarily tempered by
      his age at the time of his mother’s death. He lives with the pain of
      never knowing her, but not with the pain that comes from suddenly
      losing the love and companionship of a parent one has bonded with
      emotionally. W.W.’s life, while shadowed by this tragedy, will be
      lived with the love of those who have surrounded him from infancy—
      his father and his grandparents—not the pain of a conscious memory
      of his mother’s death. The court does not intend to minimize the loss
      of one’s mother; such is an obvious and enormous loss. The court
      simply finds that the pain and suffering for W.W. is tempered by his
      infancy at the time of his mother’s death, a factor that should be
      reflected in the noneconomic damage award. To compensate for
      W.W.’s loss of parental companionship, instruction, and guidance and
      for his mental pain and suffering, the court awards $500,000.00.

Id. at 1293-94 (footnote omitted).

      As to Michelle’s parents, Edward M. and Margarita F. McCall, the federal

district court awarded $750,000 to each for their pain and suffering, explaining as

follows:

            There is no question, as shown by the evidence, that Mr. and
      Mrs. McCall were both very close to their daughter and that this
      tragedy has greatly impacted the quality of their lives, emotionally as


                                       - 46 -
      well as physically. They were otherwise healthy, active, and excited
      about helping their daughter and new grandson. They went to the
      hospital with the happy and hopeful expectation of bringing their
      daughter home with a healthy baby but instead found themselves
      faced with the agonizing decision of whether to remove life support
      from her. Mr. McCall struggled as he recounted their hope of
      Michelle possibly regaining consciousness as they laid W.W. across
      her before she died, and also so they could have one photograph of her
      “holding” her baby before she died. The pain from the loss of their
      only daughter and the mental agony of having to make the decision to
      remove her from life support will not soon abate, if ever in their
      lifetimes. The court takes into consideration, however, that because
      of their relationship as a married couple, they will both undeniably
      benefit from each other’s noneconomic damage award.

Id. at 1294.

      As set forth by the plurality, because section 766.118(2) caps total

noneconomic damages recoverable by all claimants at $1 million, each of these

three independent survivors had his or her award of noneconomic damages

significantly reduced so that the damages were proportionally divided so as not to

exceed the statutory cap. In other words, instead of receiving the full amount of

noneconomic damages awarded by the federal district court, none of which

individually exceeded $1 million, each individual survivor was treated differently

as to his or her noneconomic damages award because there was more than one

survivor entitled to noneconomic damages in this case.

      This is where the equal protection argument addressed by the plurality

becomes important. Critically, as I explain in the next section, despite not fully

joining in the plurality opinion, I do agree that the noneconomic damages cap


                                        - 47 -
violates Florida’s Equal Protection Clause as applied to wrongful death actions

under the constitutional rational basis test.

                    II. Agreement with the Plurality Opinion

      I agree with the plurality opinion as to the following issues. First, I agree

that there are two prongs to the rational basis test, requiring the Court to consider

both whether the statute serves a legitimate governmental purpose and whether the

Legislature was reasonable in its belief that the challenged classification would

promote that purpose. See, e.g., Hechtman v. Nations Title Ins. of N.Y., 840 So.

2d 993, 996 (Fla. 2003). As this Court explained in one of its most recent

applications of the rational basis test in the equal protection context, “[t]o be

entitled to relief under the rational basis test, the [challengers] must show that the

[challenged statute] does not ‘bear some rational relationship to legitimate state

purposes.’ ” Samples v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 114

So. 3d 912, 917 (Fla. 2013) (quoting Westerheide v. State, 831 So. 2d 93, 110 (Fla.

2002)). It is not this Court’s “task ‘to determine whether the legislation achieves

its intended goal in the best manner possible, but only whether the goal is

legitimate and the means to achieve it are rationally related to the goal.’ ”

Samples, 114 So. 3d at 917 (quoting Loxahatchee River Envtl. Control Dist. v.

Sch. Bd. of Palm Beach Cnty., 496 So. 2d 930, 938 (Fla. 4th DCA 1986)).




                                         - 48 -
      Second, I also agree that this Court’s role is not to simply “rubber stamp” the

Legislature’s actions. Plurality op. at 20 (Lewis, J.). Indeed, although this Court’s

case law requires deference to the Legislature’s factual determinations, see

Echarte, 618 So. 2d at 196, this Court’s precedent also clearly establishes that the

Legislature’s findings “must actually be findings of fact” and are not entitled to the

presumption of correctness “if they are nothing more than recitations amounting

only to conclusions.” Moore v. Thompson, 126 So. 2d 543, 549 (Fla. 1960)

(quoting Seagram-Distillers Corp. v. Ben Greene, Inc., 54 So. 2d 235, 236 (Fla.

1951)).

      Third, and most importantly, I agree with the plurality’s conclusion that the

statutory cap on noneconomic damages is unconstitutional as applied to wrongful

death actions. In my view, the Court’s controlling precedent in St. Mary’s

Hospital, Inc. v. Phillipe, 769 So. 2d 961, 971 (Fla. 2000), is directly on point in

holding that this type of statutory scheme is improper because “[d]ifferentiating

between a single claimant and multiple claimants bears no rational relationship to

the Legislature’s stated goal of alleviating the financial crisis in the medical

liability insurance industry.” Id.

      Indeed, as the plurality correctly notes, this Court “clearly announced in

Phillipe that aggregate caps or limitations on noneconomic damages violate equal

protection guarantees under the Florida Constitution when applied without regard



                                         - 49 -
to the number of claimants entitled to recovery.” Plurality op. at 10 (Lewis, J.). I

agree with the plurality that this “inherently discriminatory action and resulting

invidious discrimination do not pass constitutional muster.” Id.

      The rationale of Phillipe is particularly applicable in this case given that, in

capping wrongful death noneconomic damages regardless of the number of

survivors, the only asserted legitimate State interest is the alleviation of rising

medical malpractice insurance premiums paid by the affected doctors. However,

as the plurality explains, there is no mechanism in place to assure that savings are

actually passed on from the insurance companies to the doctors. See plurality op.

at 31-34 (Lewis, J.) (explaining that section 766.118 contains no requirement that

insurance companies use the acquired savings to lower malpractice premiums,

discussing how subdivision (8) was subsequently repealed, and reviewing the

reasoning of other courts that have expressed concern about the constitutionality of

a damages cap in light of this missing link).

      Of course, the statutory cap on noneconomic damages provides no

commensurate benefit to the victims of medical malpractice, and if there is also no

commensurate benefit to the doctors and hospitals involved in medical malpractice

litigation, then only the insurance companies benefit in the form of an increase in

profits. See id. This critical missing link causes me to believe that the statutory

cap on noneconomic damages in medical malpractice actions not only fails the



                                         - 50 -
smell test, but the rational basis test as well, especially in light of the fact that

subdivision (8) was repealed as “obsolete.” See id. at 33. In other words, the

statutory cap on noneconomic damages fails the rational basis test because “the

Legislature could not have had any reasonable ground for believing that there were

public considerations justifying the particular classification and distinction made,”

North Ridge General Hospital, Inc. v. City of Oakland Park, 374 So. 2d 461, 465

(Fla. 1979), since an aggregate cap on damages without regard to the number of

claimants bears no rational relationship to the asserted State interest in “alleviating

the financial crisis in the medical liability insurance industry.” Phillipe, 769 So. 2d

at 971.

       Finally, I strongly agree with the plurality that “even if a ‘crisis’ existed

when section 766.118 was enacted, a crisis is not a permanent condition.”

Plurality op. at 35 (Lewis, J.). 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. See Conner v. Cone, 235 So. 2d 492, 498
       (Fla. 1970); see also Georgia S. & F. Ry. Co. v. Seven-Up Bottling
       Co. of Southeast Ga., 175 So. 2d 39, 40 (Fla. 1965). Accordingly,

                                          - 51 -
      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.
      See Seagram-Distillers Corp. v. Ben Greene, Inc., 54 So. 2d 235, 236
      (Fla. 1951); see also Conner, 235 So. 2d at 498.
             ....
             All other adult children who lose their parents as a result of
      other negligent conduct have the right to recover pain and suffering
      damages if their parent died without a spouse. See § 768.21(8), Fla.
      Stat. (1999). However, in the case of adult children of medical
      malpractice victims, the Legislature has denied compensation for
      mental pain and suffering not because the claims of the adult children
      are meritless, but because of the adult children’s age and because their
      parents died as a result of medical malpractice. . . .
              ....
             In sum, there is no indication that the distinction drawn by the
      statute bears a reasonable relationship to a legitimate state interest
      associated with ensuring accessible health care. Further, there is no
      indication that the medical malpractice crisis that formed the basis for
      treating this class of survivors differently than all other adult children
      even continues to this day. I therefore believe that the challengers of
      this statute have met their burden and have demonstrated that the
      distinction drawn by the Legislature is arbitrary.

Id. at 1043-44 (Pariente, J., dissenting) (emphasis added) (footnote omitted).

      The same reasons that led me to conclude that the continued deprivation of

wrongful death actions to a class of survivors in medical malpractice actions was a

denial of equal protection in Mizrahi apply in this context as well. There is no

evidence of a continuing medical malpractice crisis that would justify the arbitrary

reduction of survivors’ noneconomic damages in wrongful death cases based on

the number of survivors. This arbitrary reduction punishes the survivors of victims

of medical malpractice without any commensurate benefit to the survivors and



                                        - 52 -
without a rational relationship to the goal of reducing medical malpractice

premiums. Accordingly, like the plurality, I would answer the first rephrased

certified question in the affirmative and hold that Florida’s statutory cap on

noneconomic damages is unconstitutional as applied to wrongful death actions.

                  III. Disagreement with the Plurality Opinion

      Although I agree with many aspects of the plurality opinion and with the

ultimate conclusion as to the unconstitutionality of the statute, I cannot join in all

of the plurality’s legal analysis. In particular, my disagreement stems from my

view that our precedent does not allow this Court to engage in the type of

expansive review of the Legislature’s factual and policy findings that the plurality

engages in when undertaking a constitutional rational basis analysis.

      I emphasize that I have no reason to question the plurality’s excellent

scholarship regarding the flaws in the Legislature’s conclusions as to the existence

of a medical malpractice crisis. See plurality op. at 18-28 (Lewis, J.). In my view,

however, the rational basis test articulated by this Court, based on precedent from

the United States Supreme Court, is a deferential standard. As explained by this

Court in Echarte, 618 So. 2d at 196, “the Legislature’s factual and policy findings

are presumed correct” in a rational basis analysis unless there has been a showing

made that the findings are “clearly erroneous.”




                                         - 53 -
      The plurality relies on a case, North Florida Women’s Health and

Counseling Services, Inc. v. State, 866 So. 2d 612, 627 (Fla. 2003), involving a

fundamental right, for the proposition that “courts must conduct their own inquiry”

of the Legislature’s findings. See plurality op. at 21 (Lewis, J.). My primary

disagreement with the plurality’s analysis begins with the extensive discussion that

questions the “alleged medical malpractice crisis” and relies on North Florida

Women’s Health to support the plurality’s review of available data to consider the

“factors and circumstances involved.” Plurality op. at 18, 21 (Lewis, J.).

      North Florida Women’s Health involved the fundamental right to privacy,

which required strict scrutiny review, rather than rational basis review, and in

North Florida Women’s Health, a trial court had made findings of fact based on a

trial where both parties had the opportunity to present evidence on the underlying

issues. See N. Fla. Women’s Health, 866 So. 2d at 616. Although the plurality

capably demonstrates that the Legislature’s conclusions as to the existence of a

medical malpractice crisis may be questionable, I respectfully conclude that there

is simply no precedent for this Court to engage in its own independent evaluation

and reweighing of the facts and legislative policy findings, as done by the plurality,

when conducting a rational basis analysis.

      The plurality asserts that Warren v. State Farm Mutual Automobile

Insurance Co., 899 So. 2d 1090, 1095 (Fla. 2005), stands for the proposition that



                                        - 54 -
the rational basis test envisions judicial consideration of the existing factors and

circumstances to determine whether the legislative findings were fully supported.

My review of Warren and the cases on which it relied, however, reveals that this

Court has never engaged in the type of expansive, independent review when

conducting a rational basis inquiry that the plurality undertakes in this case.

Instead, as Warren explained, the rational basis test must be undertaken “in a light

deferential to the Legislature’s action.” Warren, 899 So. 2d at 1096.

      Accordingly, in my view, despite the plurality’s thoughtful and scholarly

approach to analyzing the alleged justification for the medical malpractice crisis,

there has been no showing made in this case that the Legislature’s findings as to

the existence of a crisis at that time were “clearly erroneous.” Echarte, 618 So. 2d

at 196. I emphasize again, however, that I agree with many aspects of the plurality

opinion, particularly the conclusion that the arbitrary reduction of survivors’

noneconomic damages in wrongful death cases based on the number of survivors

lacks a rational relationship to the goal of reducing medical malpractice premiums.

                                   IV. Conclusion

      Based on the above, I concur with the plurality’s decision to hold the cap on

wrongful death noneconomic damages in medical malpractice actions

unconstitutional but do not join in all of the plurality opinion’s reasoning.

QUINCE and PERRY, JJ., concur.



                                         - 55 -
POLSTON, C.J., dissenting.

      I respectfully dissent because the plurality disregards the rational basis

standard prescribed by our precedent as well as the Legislature’s policy role under

Florida’s constitution. The Legislature’s policy choice of enacting a cap of $1

million on noneconomic damages in medical malpractice cases involving death is

rationally related to the legitimate state interest of decreasing medical malpractice

insurance rates and increasing the affordability and availability of health care in

Florida. Therefore, under our precedent, the cap does not violate Florida’s

constitutional guarantee of equal protection. It also does not violate the access to

courts, jury trial, and separation of powers provisions of the Florida Constitution.

Accordingly, I would answer the four certified questions posed by the Eleventh

Circuit Court of Appeals in the negative.

                                   I. Background

      Justice Lewis’ plurality opinion accurately quotes the Eleventh Circuit’s

description of Michelle McCall’s tragic death following the birth of her son. Ms.

McCall’s parents and her son’s father (on behalf of her son) filed suit against the

United States pursuant to the Federal Tort Claims Act (FTCA), which provides that

the United States is liable for torts to the same extent as a private individual would

be under the applicable state’s law. Estate of McCall v. United States, 642 F.3d

944, 947 (11th Cir. 2011); Estate of McCall v. United States, 663 F. Supp. 2d



                                        - 56 -
1276, 1288 (N.D. Fla. 2009). After a two-day bench trial, the federal district court

ruled that the United States was liable for Ms. McCall’s death and found that

“Plaintiffs’ economic damages, or financial losses, amounted to $980,462.40.”

McCall, 642 F.3d at 947. Additionally, the federal district court “found that

Plaintiffs’ noneconomic damages, or nonfinancial losses, totaled $2 million,

including $500,000 for Ms. McCall’s son and $750,000 for each of her parents.”

Id. The federal district court then applied Florida’s statutory cap pursuant to

section 766.118(2), Florida Statutes (2005), to limit Plaintiffs’ recovery for

noneconomic damages to an aggregate of $1 million. Id. The $1 million capped

amount for noneconomic damages “will be equitably divided among the eligible

survivors in proportion to their respective awards.” McCall, 663 F. Supp. 2d at

1295. The federal district court “also denied Plaintiffs’ motion challenging the

constitutionality of Florida’s statutory cap under both the Florida and United States

Constitutions.” McCall, 642 F.3d at 947.

      On appeal, the Eleventh Circuit considered multiple constitutional

challenges to Florida’s statutory cap on noneconomic damages. First, the Eleventh

Circuit applied rational basis review to hold that Florida’s cap does not violate the

equal protection clause of the Fourteenth Amendment to the United States

Constitution. Id. at 950-51. The Eleventh Circuit reasoned as follows:

      Plantiffs ask us to second guess the legislature’s judgment in enacting
      a “per incident” rather than “per claimant” statutory cap. However,

                                        - 57 -
      “equal protection is not a license for courts to judge the wisdom,
      fairness, or logic of legislative choices.” Beach Commc’ns, Inc., 508
      U.S. at 313. The legislature identified a legitimate governmental
      purpose in passing the statutory cap, namely to reduce the cost of
      medical malpractice premiums and health care. See Fla. Stat. §
      766.201. The means that Florida chose, a per incident cap on
      noneconomic damages, bears a rational relationship to that end. The
      Florida legislature could reasonably have concluded that such a cap
      would reduce damage awards and in turn make medical malpractice
      insurance more affordable and healthcare more available.

Id. at 951. The Eleventh Circuit also rejected the plaintiffs’ argument that the cap

fails rational basis review because “the Florida legislature ‘had no objective,

factual basis for believing’ that a cap on noneconomic damages . . . would reduce

the cost of medical malpractice insurance.” Id. at 950. To the contrary, the

Eleventh Circuit found the Legislature issued a report on the issue, held public

hearings, heard expert testimony, and reviewed another report prepared by the

Governor’s Task Force that recommended a per incident cap to remedy the

problem. Id. at 950-51.

      Additionally, the Eleventh Circuit held that the cap on noneconomic

damages does not constitute a taking either under the Fifth Amendment to the

United States Constitution or under section 6 of article X of the Florida

Constitution. Id. at 951. The Eleventh Circuit stated that the cap does not deprive

the plaintiffs of a vested right, explaining that the cap was enacted in 2003 before

the medical malpractice at issue in the case took place in 2006. Id.




                                        - 58 -
      Finally, rather than deciding the plaintiffs’ remaining challenges to the cap

under the Florida Constitution, the Eleventh Circuit certified to this Court the

following questions:

      (1) Does the statutory cap on noneconomic damages, Fla. Stat. §
      766.118, violate the right to equal protection under Article I, Section 2
      of the Florida Constitution?

      (2) Does the statutory cap on noneconomic damages, Fla. Stat. §
      766.118, violate the right of access to the courts under Article I,
      Section 21 of the Florida Constitution?

      (3) Does the statutory cap on noneconomic damages, Fla. Stat. §
      766.118, violate the right to trial by jury under Article I, Section 22 of
      the Florida Constitution?

      (4) Does the statutory cap on noneconomic damages, Fla. Stat. §
      766.118, violate the separation of powers guaranteed by Article II,
      Section 3 and Article V, Section 1 of the Florida Constitution?

Id. at 952-53.

                  II. Florida’s Caps on Noneconomic Damages

      Section 766.118, Florida Statutes (2005), places limitations on noneconomic

damages 11 in medical malpractice cases, and the limitations vary depending upon

the circumstances. For cases involving the negligence of practitioners providing



       11. Section 766.202(8), Florida Statutes (2005), defines noneconomic
damages as “nonfinancial losses that would not have occurred but for the injury
giving rise to the cause of action, including pain and suffering, inconvenience,
physical impairment, mental anguish, disfigurement, loss of capacity for
enjoyment of life, and other nonfinancial losses to the extent the claimant is
entitled to recover such damages under general law, including the Wrongful Death
Act.”


                                        - 59 -
nonemergency care, the limitation is $500,000 per claimant, per incident, and per

practitioner:

      With respect to a cause of action for personal injury or wrongful death
      arising from medical negligence of practitioners, regardless of the
      number of such practitioner defendants, noneconomic damages shall
      not exceed $500,000 per claimant. No practitioner shall be liable for
      more than $500,000 in noneconomic damages, regardless of the
      number of claimants.

§ 766.118(2)(a), Fla. Stat. (2005). If the negligence resulted in death or a

permanent vegetative state, the cap rises to $1 million:

      Notwithstanding paragraph (a), if the negligence resulted in a
      permanent vegetative state or death, the total noneconomic damages
      recoverable from all practitioners, regardless of the number of
      claimants, under this paragraph shall not exceed $1 million.

§ 766.118(2)(b), Fla. Stat. (2005). The cap also rises to $1 million dollars in the

absence of death or a permanent vegetative state if the trial court determines that a

manifest injustice would occur or if the negligence resulted in a catastrophic injury.

Id. However, section 766.118(2)(c), Florida Statutes (2005), emphasizes that

“[t]he total noneconomic damages recoverable by all claimants from all

practitioner defendants under this subsection shall not exceed $1 million in the

aggregate.”

      For cases involving nonpractitioners providing nonemergency care, the

limitation is $750,000. § 766.118(3)(a), Fla. Stat. (2005). This cap rises to $1.5

million if the negligence caused a permanent vegetative state or death or if the trial



                                        - 60 -
court determines that a manifest injustice would occur or if the trier of fact

determines that a catastrophic injury resulted. § 766.118(3)(b), Fla. Stat. (2005).

And section 766.118(3)(d), Florida Statutes (2005), provides that “[t]he total

noneconomic damages recoverable by all claimants from all nonpractitioner

defendants under this subsection shall not exceed $1.5 million in the aggregate.”

      These limitations on noneconomic damages are part of an overall legislative

plan enacted in 2003 to address the rising costs of medical liability insurance and

the affordability and availability of healthcare in Florida. See ch. 2003-416, Laws

of Fla. Other components of the plan include new healthcare facilities regulations,

insurance regulation, license requirements, and agency requirements. Id.

      The legislative effort began with the convening of the House Select

Committee on Medical Liability Insurance, which “conducted an inquiry into the

possible causes and potential solutions to the vexing problems associated with the

availability of medical liability insurance in Florida.” Fla. H. Select Comm. on

Med. Liab. Ins., Select Comm. on Med. Liab. Ins. Rep., at 2 (March 2003)

(available at Fla. Dept. of State, Fla. State Archives, Tallahassee, Fla.). The Select

Committee examined “how the reduced availability of affordable medical liability

insurance affects the availability of medical services” and was “mindful of the

need to maintain the right of access to redress when citizens are harmed during the

delivery of medical services.” Id. at 3. The Select Committee held a series of



                                        - 61 -
meetings in Tallahassee, held four hearings outside the capital, and published an 82

page report (not including appendices). Id. It “received testimony from experts in

each of the professional areas impacted” and reviewed records from efforts to

address prior crises. Id. at 4.

      The Select Committee also reviewed the record of the Governor’s Select

Task Force on Health Care Professional Liability Insurance, which produced a

“345 page report as well as thirteen volumes of supportive materials.” Id. at 9.

The Governor’s Task Force “undertook a comprehensive review of published

studies and relevant literature” and held ten meetings at which it received extensive

testimony and information. Gov.’s Select Task Force on Healthcare Prof. Liab.

Ins., Gov.’s Task Force on Healthcare Prof. Liab. Ins. Rep., at 3, iv (2003). The

five members of the Governor’s Task Force were (1) John Hitt, President of

University of Central Florida, (2) Richard Beard, Trustee of University of South

Florida, (3) Marshall Criser, Jr., President Emeritus of University of Florida, (4)

Fred Gainous, President of Florida A&M University, and (5) Donna Shalala,

President of University of Miami. Id. at 3. In the end, the Legislature based many

of its findings and its policies upon the work of the Governor’s Task Force,

including the per incident cap on noneconomic damages. See, e.g., ch. 2003-416,

§ 1, Laws of Fla.




                                        - 62 -
      Specifically, when enacting chapter 2003-416, Laws of Florida, the

Legislature made the following findings:

             (1) The Legislature finds that Florida is in the midst of a
      medical malpractice insurance crisis of unprecedented magnitude.
             (2) The Legislature finds that this crisis threatens the quality
      and availability of health care for all Florida citizens.
             (3) The Legislature finds that the rapidly growing population
      and the changing demographics of Florida make it imperative that
      students continue to choose Florida as the place they will receive their
      medical educations and practice medicine.
             (4) The Legislature finds that Florida is among the states with
      the highest medical malpractice insurance premiums in the nation.
             (5) The Legislature finds that the cost of medical malpractice
      insurance has increased dramatically during the past decade and both
      the increase and the current cost are substantially higher than the
      national average.
             (6) The Legislature finds that the increase in medical
      malpractice liability rates is forcing physicians to practice medicine
      without professional liability insurance, to leave Florida, to not
      perform high-risk procedures, or to retire early from the practice of
      medicine.
             (7) The Legislature finds that there are certain elements of
      damage presently recoverable that have no monetary value, except on
      a purely arbitrary basis, while other elements of damage are either
      easily measured on a monetary basis or reflect ultimate monetary loss.
             (8) The Governor created the Governor’s Select Task Force on
      Healthcare Professional Liability Insurance to study and make
      recommendations to address these problems.
             (9) The Legislature has reviewed the findings and
      recommendations of the Governor’s Select Task Force on Healthcare
      Professional Liability Insurance.
             (10) The Legislature finds that the Governor’s Select Task
      Force on Healthcare Professional Liability Insurance has established
      that a medical malpractice crisis exists in the State of Florida which
      can be alleviated by the adoption of comprehensive legislatively
      enacted reforms.




                                       - 63 -
             (11) The Legislature finds that making high-quality health care
      available to the citizens of this state is an overwhelming public
      necessity.
             (12) The Legislature finds that ensuring that physicians
      continue to practice in Florida is an overwhelming public necessity.
             (13) The Legislature finds that ensuring the availability of
      affordable professional liability insurance for physicians is an
      overwhelming public necessity.
             (14) The Legislature finds, based upon the findings and
      recommendations of the Governor’s Select Task Force on Healthcare
      Professional Liability Insurance, the findings and recommendations of
      various study groups throughout the nation, and the experience of
      other states, that the overwhelming public necessities of making
      quality health care available to the citizens of this state, of ensuring
      that physicians continue to practice in Florida, and of ensuring that
      those physicians have the opportunity to purchase affordable
      professional liability insurance cannot be met unless a cap on
      noneconomic damages is imposed.
             (15) The Legislature finds that the high cost of medical
      malpractice claims can be substantially alleviated by imposing a
      limitation on noneconomic damages in medical malpractice actions.
             (16) The Legislature further finds that there is no alternative
      measure of accomplishing such result without imposing even greater
      limits upon the ability of persons to recover damages for medical
      malpractice.
             (17) The Legislature finds that the provisions of this act are
      naturally and logically connected to each other and to the purpose of
      making quality health care available to the citizens of Florida.
             (18) The Legislature finds that each of the provisions of this act
      is necessary to alleviate the crisis relating to medical malpractice
      insurance.

                               III. Equal Protection

      McCall argues that Florida’s cap of $1 million on noneconomic damages

pursuant to section 766.118(2)(b), Florida Statutes, violates the right to equal

protection under the Florida Constitution by imposing additional burdens when an



                                        - 64 -
act of medical negligence gives rise to multiple claims as well as when the

negligent act causes severe injuries. However, under the rational basis test our

precedent requires, McCall’s argument is without merit.

      Article I, section 2 of the Florida Constitution provides that “[a]ll natural

persons, female and male alike, are equal before the law. . . .” Florida’s courts

have interpreted this provision consistently with interpretations of the equal

protection clause of the United States Constitution. See, e.g., Duncan v. Moore,

754 So. 2d 708, 712 (Fla. 2000); Sasso v. Ram Prop. Mgmt., 431 So. 2d 204, 211

(Fla. 1st DCA 1983).

      As this Court explained in Duncan, 754 So. 2d at 712 (citations omitted),
             [e]qual protection is not violated merely because some persons
      are treated differently than other persons. It only requires that persons
      similarly situated be treated similarly. In the absence of a
      fundamental right or a protected class, equal protection demands only
      that a distinction which results in unequal treatment bear some
      rational relationship to a legitimate state purpose. This is known as
      the rational basis test.

      In this case, McCall argues that section 766.118(2)(b)’s cap on noneconomic

damages creates unequal treatment between those with noneconomic damages over

the cap and those with noneconomic damages under the cap, claiming that the most

severely injured are discriminated against. McCall also claims that the per incident

cap creates a discriminatory classification between those who are members of

larger families and those who are not. Because these alleged classifications do not



                                        - 65 -
involve a protected class or a fundamental right, McCall’s equal protection claim

must be analyzed using the rational basis test.

      “Under a ‘rational basis’ standard of review a court should inquire only

whether it is conceivable that the regulatory classification bears some rational

relationship to a legitimate state purpose[:]”

      The burden is upon the party challenging the statute or regulation to
      show that there is no conceivable factual predicate which would
      rationally support the classification under attack. Where the
      challenging party fails to meet this difficult burden, the statute or
      regulation must be sustained.

Fla. High Sch. Activities Ass’n v. Thomas, 434 So. 2d 306, 308 (Fla. 1983); see

also Westerheide v. State, 831 So. 2d 93, 112 (Fla. 2002). It is not the judiciary’s

task under the rational basis standard “to determine whether the legislation

achieves its intended goal in the best manner possible, but only whether the goal is

legitimate and the means to achieve it are rationally related to the goal.”

Loxahatchee River Envtl. Control Dist. v. Sch. Bd. of Palm Beach Cnty., 496 So.

2d 930, 938 (Fla. 4th DCA 1986).

      This Court has employed the rational basis test in its prior decisions

involving equal protection challenges to limitations on damages in medical

malpractice cases. For example, in Pinillos v. Cedars of Lebanon Hospital Corp.,

403 So. 2d 365 (Fla. 1981), this Court applied a rational basis analysis when

rejecting an equal protection challenge under both the Florida and federal



                                        - 66 -
constitutions to a statute that required judgments in medical malpractice actions to

be reduced by amounts received from collateral sources. This Court explained that

the Legislature, when enacting the statute, had determined that there was a medical

malpractice liability insurance crisis in Florida that was threatening public health.

Pinillos, 403 So. 2d at 367. Then, this Court concluded that “the classification

created by section 768.50[, Florida Statutes (1979),] bears a reasonable relationship

to the legitimate state interest of protecting the public health by ensuring the

availability of adequate medical care for the citizens of this state.” Id. at 368.

      In 1993, in a case primarily denying an access to courts challenge, this Court

held that caps on noneconomic damages in certain medical malpractices cases did

not violate equal protection under either the United States or Florida constitutions.

See Univ. of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993) (“[W]e have also

considered the other constitutional claims and hold that the statutes do not violate

the right to trial by jury, equal protection guarantees, substantive or procedural due

process rights, the single subject requirement, the taking clause, or the non-

delegation doctrine.”). The statutes at issue in Echarte capped noneconomic

damages in medical malpractice cases at $250,000 if the parties agreed to arbitrate.

Id. at 193 (describing section 766.207(7), Fla. Stat. (Supp. 1988)). They also

capped noneconomic damages at $350,000 if the plaintiff proceeded to trial after




                                         - 67 -
refusing a defendant’s offer to arbitrate. Id. (describing section 766.209(4), Fla.

Stat. (Supp. 1988)).

      Thereafter, in April 2000, this Court held that the statute precluding adult

children from recovering noneconomic damages for a parent’s death due to

medical malpractice did not violate the equal protection guarantees of the Florida

and federal constitutions. See Mizrahi v. N. Miami Med. Ctr., 761 So. 2d 1040

(Fla. 2000). In Mizrahi, this Court employed the rational basis test and explained

that “the Legislature referred to and discussed the medical malpractice crisis and

its adverse impact on the accessibility of health care during the passage of section

768.21.” Id. at 1042. And this Court stated that it had previously recognized the

medical malpractice crisis as a legitimate state interest in Echarte. Id. at 1042 n.3.

This Court further explained that “limiting claims that may be advanced by some

claimants would proportionally limit claims made overall and would directly affect

the cost of providing health care by making it less expensive and more accessible.”

Id. at 1043. Thus, because the exclusion is rationally related to controlling costs

and healthcare accessibility, the statute at issue in Mizrahi did not violate equal

protection. Id.

      But, in June 2000, this Court in dicta expressed equal protection concerns

about the noneconomic damages caps that had previously passed constitutional

muster in Echarte. See St. Mary’s Hosp. v. Phillipe, 769 So. 2d 961 (Fla. 2000).



                                        - 68 -
In Phillipe, this Court held that the noneconomic damages caps under section

766.207 applied to claimants individually rather than on a per incident basis. 769

So. 2d at 972. In reaching this holding, this Court first concluded that “section

766.207(7)(b) is neither clear nor unambiguous.” Id. at 968. Then, this Court

found that the Legislature’s intent with the statute was to “provide substantial

incentives to claimants and defendants to voluntarily submit their cases to binding

arbitration” and that this intent “can be obtained by interpreting section

766.207(7)(b) so that each claimant is fairly and reasonably compensated for his or

her pain and suffering.” Id. at 970. Moreover, this Court stated, “were we to

interpret the noneconomic damages cap to apply to all claimants in the aggregate,

we conclude that such an interpretation would create equal protection concerns.”

Id. at 971. Thus, this Court mentioned in Phillipe that “[d]ifferentiating between a

single claimant and multiple claimants bears no rational relationship to the

Legislature’s stated goal of alleviating the financial crisis in the medical liability

insurance industry.” Id.

      However, this Court very recently rejected a challenge that was nearly

identical to the equal protection concern this Court had mentioned in Phillipe.

Specifically, in Samples v. Florida Birth-Related Neurological Injury

Compensation Ass’n, 114 So. 3d 912, 917 (Fla. 2013), the Samples argued that the

$100,000 parental award under the Florida Birth-Related Injury Compensation



                                         - 69 -
Plan violated equal protection under the Florida and federal constitutions because

“those parents who apply for an award alone can receive twice the amount awarded

to parents who share or split a parental award.” Applying the rational basis test,

this Court in Samples concluded that “[l]imiting the parental award to $100,000

per claim—as opposed to per parent—is rationally related to maintaining the

actuarial soundness of the Plan.” Id. Therefore, this Court upheld the statutory

provision. Id.

      Similar to this Court’s precedent, the Third, Fourth, Fifth, Sixth, Ninth, and

Eleventh Circuits have all upheld limitations on noneconomic damages in medical

malpractice cases against equal protection challenges. See McCall, 642 F.3d at

951; Smith v. Botsford Gen. Hosp., 419 F.3d 513, 520 (6th Cir. 2005) (“By

limiting at least one component of health care costs, the noneconomic damages

limitation is rationally related to its intended purpose.”) (quoting Zdrojewski v.

Murphy, 657 N.W.2d 721, 739 (Mich. Ct. App. 2002)); Boyd v. Bulala, 877 F.2d

1191, 1197 (4th Cir. 1989) (holding that cap on all damages, including economic

damages, does not deny equal protection because it “bears a reasonable relation to

a valid legislative purpose—the maintenance of adequate health care services in

the Commonwealth of Virginia”); Davis v. Omitowoju, 883 F.2d 1155, 1158 (3d

Cir. 1989) (“Clearly the Virgin Island’s decision to curb, through legislation, the

high costs of malpractice insurance and thereby promote quality medical care to



                                        - 70 -
the residents of the islands, provides a rational basis for capping the amount of

damages that can be awarded a plaintiff.”); Lucas v. United States, 807 F.2d 414,

422 (5th Cir. 1986) (“Lucas has failed to convince us that there is no reasonable

basis for the Texas legislature to conclude that this ceiling on recovery from certain

institutions is not conceivably related to the availability and cost of malpractice

insurance and that such insurance and the distribution of medical care in Texas are

not conceivably linked.”); Hoffman v. United States, 767 F.2d 1431, 1437 (9th Cir.

1985) (“The record clearly supports a finding that the California Legislature had a

‘plausible reason’ to believe that the limitations on noneconomic recovery would

limit the rise in malpractice insurance costs.”).

      Additionally, multiple state courts have rejected equal protection challenges

to statutory caps on noneconomic damages. See, e.g., Fein v. Permanente Med.

Grp., 695 P.2d 665 (Cal. 1985); Zdrojewski v. Murphy, 657 N.W.2d 721 (Mich.

Ct. App. 2002); Adams v. Children’s Mercy Hosp., 832 S.W.2d 898 (Mo. 1992),

overruled on other grounds by Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633,

636 (Mo. 2012); Judd v. Drezga, 103 P.3d 135 (Utah 2004); Etheridge v. Med. Ctr.

Hosps., 376 S.E.2d 525 (Va. 1989); Robinson v. Charleston Area Med. Ctr. Inc.,

414 S.E.2d 877 (W. Va. 1991).

      Applying our rational basis precedent, it is clear that the statutory cap in this

case passes constitutional muster. When enacting the noneconomic damages cap



                                         - 71 -
at issue here, the Legislature found that “Florida is in the midst of a medical

malpractice insurance crisis of unprecedented magnitude” and that “this crisis

threatens the quality and availability of health care for all Florida citizens.” Ch.

2003-416, at § 1. The Legislature concluded that the “cost of medical malpractice

insurance has increased dramatically during the past decade” and that “both the

increase and the current cost are substantially higher than the national average.”

Id. As a result, physicians are being forced “to practice medicine without

professional liability insurance, to leave Florida, to not perform high-risk

procedures, or to retire early from the practice of medicine.” Id.

      This Court has previously recognized the existence of a medical malpractice

insurance crisis as a legitimate state interest. See Mizrahi, 761 So. 2d at 1042 n.3;

Echarte, 618 So. 2d at 196-97. Further, it is undisputed that increasing the quality,

availability, and affordability of health care for Floridians is a legitimate state

interest. And the Legislature’s policy choice of enacting a cap on noneconomic

damages in medical malpractice cases is rationally related to these state interests.

As this Court explained in Mizrahi, 761 So. 2d at 1043, “limiting claims that may

be advanced by some claimants would proportionally limit claims made overall

and would directly affect the costs of providing health care by making it less

expensive and more accessible.” In fact, “it is hard to conceive a more rational

means of assuaging the fear of huge damage awards and reining in insurance costs



                                         - 72 -
in the case of a victim’s death than by limiting noneconomic wrongful death

damages.” Maurin v. Hall, 682 N.W.2d 866, 890-91 (Wis. 2004).

       More specifically, the Florida Legislature could have rationally believed that

the cap on noneconomic damages under section 766.118(2)(b) would reduce

malpractice damage awards, which would thereby increase predictability in the

medical malpractice insurance market and lead to reduced insurance premiums.

Then, as a result of decreased insurance premiums, physicians would be more

willing to stay in Florida and perform high-risk procedures at a lower cost to

Floridians. 12

       McCall contends that the cap at issue in this case violates Florida’s equal

protection guarantee because it applies on a per incident, rather than a per claimant,

      12. In fact, the Governor’s Task Force, upon which the Legislature
expressly relied, concluded as much:

       [I]mposing caps on non-economic damages in medical malpractice
       cases will significantly reduce the exposure of Florida healthcare
       providers to risk of loss from jury awards of inherently subjective
       damages. Such a reduction of risk will make malpractice losses much
       more predictable, and thereby lead to stability in malpractice
       insurance premium rates.
              A reduction in potential liability and resulting stability will
       encourage more malpractice insurers to participate in the Florida
       market. This, along with the reduced exposure to risk, will permit
       insurers to charge lower premiums, on a sound financial basis. Lower
       premiums will encourage providers (particularly those in high-risk
       specialties) to offer healthcare services to Floridians, and persons
       visiting this state, and to do so at lower prices.

Gov.’s Task Force Report, at xvii.

                                        - 73 -
basis. However, the Legislature could have reasonably believed that a per incident

cap would more effectively reduce noneconomic damages awards and create more

stability in the insurance market than a per claimant cap would. A per incident cap

leads to more predictability in the insurance market since the noneconomic

damages cannot exceed the cap in any particular instance of malpractice regardless

of the number of individual claimants. And the Legislature could have reasonably

believed that this increased predictability would more effectively decrease medical

malpractice insurance rates, thereby keeping more physicians in Florida to provide

more access to quality health care (including high-risk procedures) at a lower cost

to Floridians.

      As a federal district court ably stated when rejecting a similar per incident

argument regarding the same statutory cap at issue here,

      [t]he aggregate limit on non-economic damages—applying to each
      incident regardless of the number of claimants—serves precisely the
      same legitimate interest served by individual caps: by reducing
      damage awards, limits on damages make medical malpractice
      insurance more affordable and quality healthcare services more
      available. A cap applicable to each occurrence, in cooperation with
      caps individually applicable to each claimant, reduces damage awards
      as a matter of mathematical certainty, enhances needed predictability,
      places a calculable limit on the exposure of healthcare and insurance
      providers, reduces malpractice insurance premiums, and promotes the
      availability of quality healthcare.

M.D. v. United States, 745 F. Supp. 2d 1274, 1280-81 (M.D. Fla. 2010).




                                       - 74 -
      McCall also argues that the noneconomic damages cap violates equal

protection because the more severely injured may not recover their full damages,

unlike those whose damages fall under the cap. However, if this were an equal

protection violation, no cap on damages could survive equal protection review

because all caps have that effect. And this Court has rejected equal protection

challenges to caps on damages previously. See Echarte, 618 So. 2d 189; see also

Phillipe, 769 So. 2d 961. In fact, in Echarte, this Court rejected an equal protection

challenge under the Florida Constitution to statutory caps on noneconomic

damages when the parties and amici advanced the precise argument that McCall

raises here, namely that the noneconomic damages cap discriminated against the

most severely injured. Therefore, under this Court’s precedent, McCall’s equal

protection argument based upon the fact that some may not fully recover is without

merit. Ultimately, “the Legislature simply may have felt that it was fairer to

malpractice plaintiffs in general to reduce only the very large noneconomic

damage awards, rather than to diminish the more modest recoveries for pain and

suffering and the like in the great bulk of cases.” Fein, 695 P.2d at 683.

      Rather than applying the analysis prescribed by our precedent, the plurality

concludes that the statutory cap is “unfair” and “purely arbitrary” by citing two

other state supreme courts and improperly relying on dicta from our decision in

Phillipe, while ignoring the fact that this Court in Samples very recently rejected



                                        - 75 -
an argument that was nearly identical to the dicta expressed in Phillipe. See

plurality op. at 9-13 (Lewis, J.).

      Even more disturbingly, and as acknowledged by Justice Pariente to be

inappropriate and unprecedented, 13 Justice Lewis’ plurality opinion addresses

McCall’s equal protection challenge by conducting a de novo review of medical

malpractice issues, overruling the findings made by the Legislature, and

disregarding the evidence upon which those findings were based. Justice Lewis’

plurality opinion reweighs the evidence and disbelieves the Governor’s Task Force

as well as the legislative testimony, claiming that its own independent review has

revealed that the other two branches were incorrect and that a “bona fide medical

malpractice crisis” probably did not and certainly does not currently exist. See id.

at 18-28, 35-40. Additionally, despite the Legislature’s and the Task Force’s

conclusions on the matter after reviewing the evidence, this plurality’s independent

review has revealed that the “available data” “failed to establish a direct correlation

between damage caps and reduced malpractice premiums.” Id. at 28, 35.




      13. See concurring in result op. at 54 (Pariente, J.) (“[T]here is simply no
precedent for this Court to engage in its own independent evaluation and
reweighing of the facts and legislative policy findings, as done by the plurality,
when conducting a rational basis analysis.”).


                                        - 76 -
      While the plurality clearly would have come to a different policy choice than

the Legislature based upon the hardly unambiguous data 14 that the plurality could

cull from the record and the internet, that is not the point. Instead, our precedent

dictates that we employ the rational basis test, which is a relatively easy test for a

statute to pass and which recognizes and respects the Legislature’s role as the

primary policymaker in our constitutional system. See McElrath v. Burley, 707

So. 2d 836, 839 (Fla. 1st DCA 1998) (explaining that the rational basis test

provides “minimal scrutiny” under which the challenger bears “a heavy burden”);

see also Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 314 (1976) (“This

inquiry employs a relatively relaxed standard reflecting the Court’s awareness that

the drawing of lines that create distinctions is peculiarly a legislative task and an

unavoidable one.”). In fact, the rational basis standard is less stringent than the

deferential competent substantial evidence standard we employ when reviewing




        14. Justice Lewis notes that medical malpractice filings have decreased
significantly since fiscal year 2003-04 and that Florida, according to a 2011 report,
is now retaining a fairly high percentage of Florida-trained medical students. See
plurality op. at 36-37 (Lewis, J.). While he uses this information to support the
plurality’s argument that the statutory caps are no longer justified because a
medical malpractice crisis does not currently exist, this information just as easily
(and perhaps more likely) supports the argument that the cap has had its intended
effect and that, if the cap is eliminated, the medical malpractice crisis would return
in full force.


                                         - 77 -
our own branch’s findings of fact. 15 Under the rational basis standard, there just

has to be a conceivable factual predicate that would provide a rational reason for

the Legislature to have done what it chose to do. See Fla. High School Activities

Ass’n, 434 So. 2d at 308 (“The burden is upon the party challenging the statute . . .

to show that there is no conceivable factual predicate which would rationally

support the classification under attack. . . .”). The statute does not need to be

supported by unequivocal evidence in the record from the point in time when the

statute was enacted or by more recent and allegedly authoritative reports posted on

the internet. In other words, as Justice Pariente’s concurring in result opinion

recognizes, this Court is not supposed to conduct an independent review of

available data. See Heller v. Doe, 509 U.S. 312, 320 (1993) (“A State, moreover,

has no obligation to produce evidence to sustain the rationality of a statutory

classification. ‘[A] legislative choice is not subject to courtroom factfinding and

may be based on rational speculation unsupported by evidence or empirical data.’

”) (quoting F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993)). Rather, if

       15. Of course, there is competent substantial evidence to support the
Legislature’s findings of fact. For example, one actuary testified before the
Governor’s Task Force that “[m]aking losses more predictable is a key to attracting
companies to provide coverage, and it is also a key to getting more stable pricing
in the marketplace.” And there was testimony that “[i]n Georgia, physicians pay
from $5,000 to $6,000 for $1,000,000 of coverage. Thirty miles south, in
Jacksonville, that costs $27,000.” Moreover, “[i]n one instance, a Fort Lauderdale
pediatric orthopedic surgeon’s premiums went from $32,000 to $96,000 a year,”
and, due to the increase, the surgeon planned to move to a state with tort reform.


                                         - 78 -
we can conceive of a possible factual predicate that provides a rational basis in

furtherance of a legitimate state interest, the statute does not violate the equal

protection provision of the Florida Constitution.

      Here, applying the proper rational basis test, it is clear that the cap on

noneconomic damages passes muster because it is rationally related to the

legitimate state interest of decreasing medical malpractice insurance rates and

increasing the affordability and availability of health care in Florida. Accordingly,

I would answer the Eleventh Circuit’s equal protection question in the negative and

then address its access to courts, jury trial, and separation of powers questions.

                                IV. Access to Courts

      Relying on this Court’s decision in Smith v. Department of Insurance, 507

So. 2d 1080 (Fla. 1987), McCall contends that section 766.118(2)’s $1 million cap

on noneconomic damages does not satisfy the access to court test set forth in

Kluger v. White, 281 So. 2d 1 (Fla. 1973). I would hold otherwise.

      Section 21 of article I of the Florida Constitution provides that “[t]he courts

shall be open to every person for redress of any injury, and justice shall be

administered without sale, denial or delay.” In Kluger, 281 So. 2d at 4, this Court

enunciated the following test for determining whether a statute violates this

constitutional guarantee:

      [W]here a right of access to the courts for redress for a particular
      injury has been provided by statutory law predating the adoption of

                                         - 79 -
      the Declaration of Rights of the Constitution of the State of Florida, or
      where such right has become a part of the common law of the State
      pursuant to Fla. Stat. § 2.01, F.S.A., the Legislature is without power
      to abolish such a right without providing a reasonable alternative to
      protect the rights of the people of the State to redress for injuries,
      unless the Legislature can show an overpowering public necessity for
      the abolishment of such right, and no alternative method of meeting
      such public necessity can be shown.

In other words, to survive an access to courts challenge, a statute eliminating

redress for an injury must satisfy at least one of two possible prongs: (1) either the

statute must provide a reasonable alternative to redress the injury involved, or (2)

the Legislature must show that there was “an overpowering public necessity for the

abolishment” and that there was “no alternative method of meeting such public

necessity.” Id.

      In Echarte, 618 So. 2d 189, this Court applied the second prong from Kluger

to hold that the statutory caps on noneconomic damages in medical malpractice

cases when a party requests arbitration do not violate the right of access to courts.

Specifically, this Court upheld the $250,000 cap on noneconomic damages if the

parties agree to voluntary binding arbitration as well as the $350,000 cap if the

plaintiff refuses a defendant’s offer to arbitrate. In its analysis, this Court in

Echarte ruled that the first Kluger alternative was satisfied because “[t]he

defendant’s offer to have damages determined by an arbitration panel provides the

claimant with the opportunity to receive prompt recovery without the risk and

uncertainty of litigation or having to prove fault in a civil trial.” Echarte, 618 So.


                                          - 80 -
2d at 194. Next, this Court held that “[e]ven if the medical malpractice arbitration

statutes at issue did not provide a commensurate benefit, we would find that the

statutes satisfy the second prong of Kluger.” Id. at 195.

      In Echarte, this Court explained that the judiciary exercises restraint when

reviewing the legislative findings necessary to satisfy the second prong of Kluger.

Specifically, this Court stated the “legislative determinations of public purpose and

facts are presumed correct and entitled to deference, unless clearly erroneous.” Id.

at 196. This Court explained that “[t]he Legislature has the final word on

declarations on public policy, and the courts are bound to give great weight to

legislative determinations of facts.” Id.

      This Court in Echarte began its discussion of the legislative showing of an

overwhelming public necessity by explaining that the preamble to the statute at

issue “clearly states the Legislature’s conclusion that the current medical

malpractice insurance crisis constitutes an ‘overpowering public necessity.’ ” Id.

This Court also noted that the “Legislature made a specific factual finding that

‘[m]edical malpractice liability insurance premiums have increased dramatically in

recent years, resulting in increased unavailability of malpractice insurance for

some physicians.’ ” Id. (quoting § 766.201(1)(a)). Then, this Court concluded that

the Legislature’s findings were supported by the work of the Academic Task Force

for Review of the Insurance and Tort Systems, which found, among other things,



                                        - 81 -
that “a family physician who performs no surgery and practiced outside Dade and

Broward Counties saw a 229% increase in medical malpractice insurance

premiums.” Id. This Task Force had based its findings upon seven public hearings

and meetings as well as surveys, research projects, and a literature review. Id. at

196 n.17. Based upon this record, this Court concluded that “the Legislature has

shown that an ‘overpowering public necessity’ exists.” Id. at 196-97.

      Additionally, despite the lack of an express legislative finding on the matter,

this Court in Echarte held that “the record supports the conclusion that no

alternative or less onerous method exists.” Id. at 197. This Court noted that “in

determining whether no alternative means exists to meet the public necessity of

ending the medical malpractice crisis, the plan as a whole, rather than focusing on

one specific part of the plan, must be considered.” Id. This Court explained that

the Task Force believed that “reforms of the civil justice system, of the medical

regulatory system, and of the insurance system complement each other” and that

“all are necessary to address the complex problems with multiple causes” of the

medical malpractice insurance crisis. Id. (quoting the Task Force’s

recommendations to the Legislature). And this Court in Echarte rejected the

contention that professional discipline alone would have been an alternative

method to meet the public necessity at issue, explaining that “the Task Force

specifically found that: ‘[s]trengthened regulation of medical care providers is not



                                        - 82 -
a substitute for tort and insurance reform.’ ” Id. (quoting Task Force). “The Task

Force specifically stated that even though a small percentage of the physicians

were responsible for 42.2% of the total claims paid out, the facts did not support

the conclusion that these doctors were incompetent.” Id. Thus, because it was

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

noneconomic damages, and the strengthened regulation of the medical profession

are necessary to meet the medical malpractice insurance crisis,” this Court in

Echarte held that the second prong of Kluger was satisfied. Id.

      Similar to Echarte, the Legislature when enacting the statute at issue in this

case expressly found that “Florida is in the midst of a medical malpractice

insurance crisis of unprecedented magnitude” and that “making high-quality health

care available to the citizens of this state,” “ensuring that physicians continue to

practice in Florida,” and “ensuring the availability of affordable professional

liability insurance for physicians” are overwhelming public necessities. Ch. 2003-

416, at § 1. The Legislature specifically found that “Florida is among the states

with the highest medical malpractice insurance premiums in the nation” and that

“the cost of medical malpractice insurance has increased dramatically during the

past decade and both the increase and the current cost are substantially higher than

the national average.” Id. Further, the Legislature determined that “the increase in

medical malpractice liability insurance rates is forcing physicians to practice



                                         - 83 -
medicine without professional liability insurance, to leave Florida, to not perform

high-risk procedures, or to retire early from the practice of medicine.” Id.

       These Legislative findings of an overwhelming public necessity are

supported by the determinations of the Governor’s Task Force. For example, in its

report, the Governor’s Task Force concluded that the cost of medical malpractice

insurance had increased dramatically, explaining the following particulars:

      In 2002 the average medical malpractice premium per doctor in
      Florida was 55 percent higher than the national average. Florida’s
      average insurance premiums have increased 64 percent since 1996
      while nationally the average insurance premiums have increased 26
      percent.

Gov.’s Task Force Rep. at v. The Task Force received specific testimony

indicating that “[i]n Georgia, physicians pay from $5,000 to $6,000 for $1,000,000

of coverage. Thirty miles south, in Jacksonville, that costs $27,000.” Id. at 76.

And the Task Force noted that:

      [t]he Professional Medical Insurance Services, Inc., underwriters for
      Florida physicians, estimates that, in 2003, for OB/GYNs who
      presently have coverage, costs for $1 million dollar[s] of coverage
      will average between $70,000 and $110,000 per year; $250,000 of
      coverage will cost between $50,000 and $60,000 per year. For
      OB/GYNs seeking new insurance in 2003, estimates show that $1
      million dollars in coverage will cost $150,000 per year[] and $250,000
      in coverage will cost between $90,000 and $107,000 per year. As a
      result of these escalating costs, physicians are simply either under
      insuring or becoming uninsured with regard to their practices.

Id. at 306. The Task Force found that “[i]n Miami, evidence reflects that 80

percent of the OB/GYNs carry no insurance and those who do are paying over


                                        - 84 -
$207,000 per year for $1 million dollars worth of coverage.” Id. And “[t]he

number of insurance companies writing medical malpractice policies in Florida

went from a high of sixty-six companies in 1999 to twelve currently.” Id. at v.

The Task Force also described testimony indicating that, as a result of these issues,

over half the doctors in Florida that carry insurance can only afford to carry a

$250,000 policy even though the most prevalent rate in the rest of the country is

for a doctor to carry a $1,000,000 policy. Id. at 76. The Task Force further found

that “[t]he concern over litigation and the cost and lack of medical malpractice

insurance have caused doctors to discontinue high-risk procedures, turn away high-

risk patients, close practices, and move out of the state.” Id. at vi. Indeed, “[i]n

Broward County alone, 400 physicians have left the state, or retired early in the

past year.” Id. at 72. The Task Force learned that “[i]n one instance, a Fort

Lauderdale pediatric orthopedic surgeon’s premiums went from $32,000 to

$96,000 a year.” Id. Due to this increase, the surgeon reported a plan “to return to

his home state, Louisiana, as that state has tort reform.” Id. Therefore, because the

Legislature’s factual and policy findings are presumed correct (as explained in

Echarte), and because (as in Echarte) these findings are supported by the work of

the Governor’s Task Force, the Legislature has shown the existence of an

“overpowering public necessity.”




                                         - 85 -
      Regarding the “no alternative method” showing necessary to satisfy the

second prong of Kluger, the Legislature expressly found that “the overwhelming

public necessities of making quality health care available to the citizens of this

state, of ensuring that physicians continue to practice in Florida, and of ensuring

that those physicians have the opportunity to purchase affordable professional

liability insurance cannot be met unless a cap on noneconomic damages is

imposed.” Ch. 2003-416, at § 1(14), Laws of Fla. The Legislature determined that

“the high cost of medical malpractice claims can be substantially alleviated by

imposing a limitation on noneconomic damages” and that “there is no alternative

measure of accomplishing such result without imposing even greater limits upon

the ability of persons to recover damages for medical malpractice.” Ch. 2003-416,

at § 1(15), (16), Laws of Fla. The Legislature also found that “each of the

provisions of this act is necessary to alleviate the crisis relating to medical

malpractice insurance.” Ch. 2003-416, at § 1(18), Laws of Fla.

      The record supports these legislative findings and determinations. For

instance, the Governor’s Task Force stated that, “without the inclusion of a cap on

potential awards of non-economic damages in the package, no legislative reform

plan can be successful in achieving a goal of controlling increases in healthcare

costs and thereby promoting improved access to healthcare.” Gov.’s Task Force




                                         - 86 -
Rep. at 218. The Task Force noted that various other alternatives had been tried

previously without success:

      Since 1975, Florida has implemented (or attempted to implement)
      numerous alternatives to the cap on non-economic damages and the
      other reforms recommended in this Report. None, alone or together
      with the others, has solved the crisis of medical malpractice insurance
      availability and affordability. Instead, Florida’s numerous attempts to
      solve this problem are nothing more than a failed litany of
      alternatives.

Id. at 219.

      The Task Force explained that “one of the primary drivers of the current

medical malpractice crisis is that a large percentage of medical malpractice losses

(77 percent in Florida) apply to non-economic damages (i.e., pain and suffering).”

Id. at 212. The Task Force also stated its belief that “caps on non-economic

damages are particularly effective, because they limit the escalation of awards for

pain and suffering, which fuels large increases for all awards and settlements.” Id.

In fact, the Task Force thought that a cap on noneconomic damages was so

important to alleviating the crisis and lowering premiums that it recommended a

$250,000 per incident cap on noneconomic damages, rather than the $1 million per

incident cap at issue in this case. See id. at xi. Based upon this record, the

Legislature has shown that “no alternative or less onerous method exists.” Echarte,

618 So. 2d at 197.




                                        - 87 -
      Accordingly, because the Legislature has shown an overpowering public

necessity for the cap on noneconomic damages and that there is no alternative

method of meeting the public necessity, the second prong of Kluger (as applied in

Echarte) is satisfied. Therefore, section 766.118(2)(b) does not violate the right of

access to court guaranteed by the Florida Constitution.

                                    V. Jury Trial

      McCall also contends that the cap on noneconomic damages violates the

right to a jury trial guaranteed by the Florida Constitution. However, I would

disagree and therefore answer the Eleventh Circuit’s certified question in the

negative.

      Article I, section 22 of the Florida Constitution provides that “[t]he right of

trial by jury shall be secure to all and remain inviolate.” Florida’s “first

constitution of 1838, which became effective upon Florida’s admittance to the

Union in 1845, and all subsequent constitutions have contained similar

provisions.” In re 1978 Chevrolet Van, 493 So. 2d 433, 434 (Fla. 1986). Thus,

section 22 of article I “guarantees the right to trial by jury in those cases in which

the right was enjoyed at the time this state’s first constitution became effective in

1845.” Id.

      This right to a jury trial is not implicated here because survivors of a

wrongful death did not have the right to recover noneconomic damages in 1845.



                                         - 88 -
“It is well known that at common law the cause of action died with the person and

that a parent had no right of action as parent for the wrongful death of a minor

child.” Klepper v. Breslin, 83 So. 2d 587, 592 (Fla. 1955). Parents only gained

this statutory right in 1899. Id. at 591. Other survivors were not entitled to recover

pain and suffering damages until the Legislature enacted the Wrongful Death Act

in 1972. See ch. 72-35, Laws of Fla.; Lifemark Hosps. of Fla., Inc. v. Afonso, 4

So. 3d 764, 769 (Fla. 3d DCA 2009) (“A survivor’s right to recover pain and

suffering did not become part of the Wrongful Death Act until 1972. . . .”); see also

Martin v. United Sec. Servs., Inc., 314 So. 2d 765, 767-68 (Fla. 1975) (describing

the damages that were recoverable before and after the enactment of the Wrongful

Death Act in 1972). Therefore, because the petitioners would not have had the

right to recover damages from Ms. McCall’s death in 1845, the cap on

noneconomic damages under section 766.118(2)(b) does not violate the right to a

jury trial guaranteed by the Florida Constitution.

                            VI. Separation of Powers

      Lastly, McCall contends that the cap on noneconomic damages violates the

Florida Constitution’s provision ensuring separation of powers because the cap

amounts to an impermissible legislative remittitur. I would reject this argument.

      Article II, section 3 of the Florida Constitution provides that “[t]he powers

of the state government shall be divided into legislative, executive and judicial



                                        - 89 -
branches. No person belonging to one branch shall exercise any powers

appertaining to either of the other branches unless expressly provided herein.” As

this Court has explained, “[g]enerally, the Legislature is empowered to enact

substantive law while [the judicial branch] has the authority to enact procedural

law.” Massey v. David, 979 So. 2d 931, 936 (Fla. 2008). Therefore, “[i]f a statute

is clearly substantive and operates in an area of legitimate legislative concern, this

Court will not hold that it constitutes an unconstitutional encroachment on the

judicial branch.” Id. at 937.

      In Rowlands v. Signal Construction Co., 549 So. 2d 1380, 1381-82 (Fla.

1989) (footnote omitted), this Court explained remittitur as follows:

             In its classic sense, the term “remittitur” means nothing more
      than “[t]he procedural process by which a verdict of the jury is
      diminished by subtraction.” Black’s Law Dictionary 1164 (5th ed.
      1979). Indeed, when remittitur was created in 1822 by Justice Story,
      it was for the express purpose of subtracting a specific amount from
      an excessive verdict if the plaintiff wanted to avoid the court’s
      alternative new-trial order. Blunt v. Little, 3 F. Cas. 760, 762 (No.
      1578) (C.C.A. Mass. 1822). See Note, Remittitur Practice in the
      Federal Courts, 76 Colum. L. Rev. 299, 300 (1976) (discussing
      history of remittitur). Thus, remittitur is proper where liability clearly
      exists, but the total dollar amount of damages is merely excessive.

In other words, “remittitur operates as a procedural device to bring the damages

back within the outer bounds of law.” Rowlands, 549 So. 2d at 1382 n.1.

      Here, the challenged cap does not invade the province of the judiciary

because it does not operate as a legislative remittitur. The statutory cap establishes



                                        - 90 -
a limit to noneconomic damages in medical malpractice cases generally. It does

not perform the judiciary’s function of reviewing the specific support for particular

damage awards in individual cases. Accordingly, “[b]ecause the challenged law

does not purport to vest the Legislature with authority to make a fact intensive,

case-by-case determination of the propriety of damage awards in individual cases,

it does not usurp the authority of the judiciary.” M.D., 745 F. Supp. 2d at 1281.

      Moreover, in Smith, 507 So. 2d at 1092, this Court rejected the argument

that statutory limitations on punitive damages violated Florida’s separation of

powers provision. See also Echarte, 618 So. 2d at 191 (holding that the caps on

noneconomic damages in medical malpractice cases where a party offers

arbitration do not violate “the non-delegation doctrine”); Cauley, 403 So. 2d at 387

(holding that caps on damages in tort cases against municipalities do not violate

“the separation of powers rule”). This Court in Smith explained that “[w]hen the

legislature enacted these provisions, it was addressing the substantive rights of

plaintiffs and defendants in civil litigation actions with regard to recovery of

damages.” 507 So. 2d at 1092. This Court also approved the following reasoning

the trial court employed when rejecting the separation of powers claim:

             Sections 51 and 52 deal with the subject of punitive damages.
      Section 51 defines the conditions the plaintiff must meet to recover
      punitive damages. Section 52 limits the amount of punitive damages
      available in certain civil actions. In addition, section 52 specifies who
      shall receive any punitive damages so awarded. Section 51 is clearly
      substantive because it sets the standard for establishing a claim for

                                        - 91 -
      punitive damages. The legislature, which has the authority to abolish
      punitive damages can surely set the standard for establishing such
      claims. The Court is of the view that both sections create substantive
      rights and further that any procedural provisions of these sections are
      intimately related to the definition of those substantive rights.

Id. at 1092 n.10.

      Like the punitive damages statute at issue in Smith, the statutory cap on

noneconomic damages at issue here addresses the substantive rights of parties with

regard to the recovery of damages. And because section 766.118(2)(b) addresses

substantive rights, it does not violate the separation of powers clause of the Florida

Constitution.

                                  VII. Conclusion

      As explained above, the plurality chooses to disregard the rational basis

standard prescribed by our precedent as well as the Legislature’s policy role under

Florida’s constitution. Under our precedent, Florida’s per incident cap for a

wrongful death action does not violate Florida’s constitutional guarantees of equal

protection, access to courts, jury trial, and separation of powers. Therefore, I

would answer the certified questions from the Eleventh Circuit in the negative. I

respectfully dissent.

CANADY, J., concurs.

Certified Question of Law from the United States Court of Appeals for the
Eleventh Circuit - Case No. 07-00508CV-3-MCR/EMT




                                        - 92 -
Henry T. Courtney and Sara Courtney-Baigorri of Courtney Law Firm, Coral
Gables, Florida; Stephen S. Poche of The Law Office of Stephen S. Poche, P.A.,
Shalimar, Florida; and Robert S. Peck and Valerie M. Nannery of Center for
Constitutional Litigation, P.C., Washington, District of Columbia,

      for Appellants

Tony West, Assistant Attorney General, Pamela C. Marsh, United States Attorney,
Daniel J. Lenerz and Thomas M. Bondy, Attorneys, Appellate Staff Civil Division,
United States Department of Justice, Washington, District of Columbia; and
Pamela A. Moine, United States Attorney’s Office, Pensacola, Florida,

      for Appellee

Raoul G. Cantero and David P. Draigh of White & Case LLP, Miami, Florida,

      for Amici Curiae Coral Gables Hospital, Delray Medical Center, Good
      Samaritan Medical Center, Hialeah Hospital, North Shore Medical Center,
      North Shore Medical Center-FMC Campus, Palm Beach Gardens Medical
      Center, Palmetto General Hospital, St. Mary’s Medical Center and West
      Boca Medical Center

Thomas E. Warner and Dean A. Morande of Carlton Fields, P.A., West Palm
Beach, Florida,

      for Amicus Curiae HCA Health Services of Florida, Inc.

Fred J. Hiestand, Sacramento, California,

      for Amicus Curiae The Civil Justice Association of California

Jennifer A. Tschetter, General Counsel, Florida Department of Health, Tallahassee,
Florida; M. Drew Parker, General Counsel, and John Slye, Acting General
Counsel, Florida Department of Children & Families, Tallahassee, Florida; Dean
C. Kowalchyk, General Counsel, Florida Department of Elder Affairs, Tallahassee,
Florida; William H. Roberts, Acting General Counsel, Florida Agency for Health
Care Administration, Tallahassee, Florida; and Mike Palecki, General Counsel,
Florida Department of Agency for Persons with Disabilities, Tallahassee, Florida,




                                      - 93 -
      for Amici Curiae Surgeon General Frank Famer and Florida’s Healthcare
      Agencies

William W. Large, Tallahassee, Florida,

      for Amicus Curiae Florida Justice Reform Institute

Stephen Hogge of Stephen Hogge, Esq., LLC, Tallahassee, Florida,

      for Amicus Curiae Professor Paul H. Rubin

George N. Meros, Jr. and Allen Winsor of GrayRobinson PA, Tallahassee, Florida,

      for Amici Curiae Florida College of Emergency Physicians and The Florida
      Orthopaedic Society

Mark Hicks, Dinah Stein, and Shannon Kain of Hicks, Porter, Ebenfeld & Stein,
P.A., Miami, Florida,

      for Amicus Curiae Florida Medical Association

Arthur J. England, Jr. and Christopher B. Carbot of Greenberg Traurig, P.A.,
Miami, Florida; Mark K. Delegal and Cynthia S. Tunnicliff of Pennington, Moore,
Wilkinson, Bell & Dunbar, P.A., Tallahassee, Florida,

      for Amici Curiae The Florida Hospital Association and The Safety Net
      Hospital Alliance of Florida

Pamela Jo Bondi, Attorney General and Diane G. DeWolf, Deputy Solicitor
General, Office of the Attorney General, Tallahassee, Florida,

      for Amicus Curiae The State of Florida

Christopher L. Nuland and Brian Hart of Law Offices of Christopher L. Nuland,
P.A., Jacksonville, Florida,

      for Amici Curiae The Florida Chapter of the American College of
      Physicians, Florida Chapter of the American College of Surgeons, Florida
      Obstetric and Gynecologic Society, Florida Society of Plastic Surgeons,
      Florida Society of Thoracic and Cardiovascular Surgeons, Florida

                                      - 94 -
      Neurosurgical Society, Florida Society of General Surgeons, Florida Society
      of Dermatology and Dermatologic Surgery and Florida Gastroenterologic
      Society

Michael L. Rosen of Shook Hardy & Bacon L.L.P., Tampa, Florida; Mark A.
Behrens and Cary Silverman of Shook Hardy & Bacon, Washington, District of
Columbia,

      for Amici Curiae American Medical Association, American Academy of
      Orthopaedic Surgeons, American Congress of Obstetricians and
      Gynecologists, Chambers of Commerce of the United States of American,
      Health Coalition on Liability and Access, Physicians Insurers Association of
      America, Property Casualty Insurers Association of America, National
      Association of Mutual Insurance Companies, and NFIB Small Business
      Legal Center

Lincoln J. Connolly of Rossman, Baumberger, Reboso, Spier & Connolly, P.A.,
Miami, Florida,

      for Amici Curiae Floridians for Patient Protections, Inc. and Florida
      Consumer Action Network, Inc.

Barbara W. Green of Barbara Green, P.A., Coral Gables, Florida; and Joel S.
Perwin of Joel S. Perwin, P.A., Miami, Florida,

      for Amici Curiae The Florida Justice Association, AARP, Florida AFL-CIO,
      and Florida Public Employee Council 79, AFSCME, AFL-CIO

John S. Mills and Andrew D. Manko of The Mills Firm, P.A., Tallahassee, Florida

      for Amici Curiae Professors Neil Vidmar, Tom Baker, Ralph L.
      Brill, Martha Chamallas, Stephen Daniels, Thomas A. Eaton, Theodore
      Eisenberg, Marc Galanter, Valerie P. Hans, Edward J. Kionka, Thomas
      Koenig, Herbert Kritzer, Nancy S. Marder, Joanne Martin, Frank M.
      McClellan, Deborah Jones Merritt, James T. Richardson, and Michael L.
      Rustad

Stephen N. Zack, President, American Bar Association, Chicago, Illinois; and
Herman J. Russomanno, Robert J. Borrello, Herman J. Russomanno III, of
Russomanno & Borrello P.A., Miami, Florida,

                                       - 95 -
      for Amicus Curiae The American Bar Association

George S. Christian, Austin, Texas,

      for Amicus Curiae Texas Civil Justice League




                                      - 96 -
