       Third District Court of Appeal
                                State of Florida

                         Opinion filed December 12, 2018.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                          Nos. 3D18-106 & 3D17-2704
                          Lower Tribunal No. 15-267-K
                               ________________


                    Hayes Robertson Group, Inc., etc.,
                                Appellant/Appellee,

                                         vs.

                Timothy Christopher Cherry, etc., et al.,
                               Appellees/Appellants.


      Appeals from the Circuit Court for Monroe County, Timothy J. Koenig,
Judge.

      Dixit Law Firm and Shyamie Dixit and Robert L. Vessel (Tampa), for
appellant/appellee.

       Horan, Wallace & Higgins and Darren M. Horan and David Paul Horan; The
McKee Law Group and Robert J. McKee (Davie); Lewis Legal Group and Jeannete
C. Lewis (Plantation); Brill & Rinaldi, The Law Firm and David W. Brill and Joseph
J. Rinaldi, Jr.; Russo Appellate Firm and Elizabeth K. Russo and Paulo R. Lima, for
appellees/appellants.


Before ROTHENBERG, C.J., and SALTER and LINDSEY, JJ.
      SALTER, J.

      These consolidated appeals arise from a tragic death and personal injuries in

Key West, Florida, caused in a vehicular collision by an alcohol-impaired, off-duty

employee of a restaurant company. In Case No. 3D17-2704, the decedent’s estate

and three survivors of the accident appeal an adverse jury verdict, the denial of their

motion for a new trial, and final judgment. In Case No. 3D18-106, the defendant,

Hayes Robertson Group, Inc., doing business as Fogarty’s Restaurant (“Hayes

Robertson”), appeals the denial of its motion for attorney’s fees based on its three

pretrial proposals for settlement to the plaintiffs. For the reasons which follow, we

affirm the final judgment in favor of Hayes Robertson and we affirm the order

denying Hayes Robertson’s motion for attorney’s fees.

      Facts and Procedural Background: Final Judgment on Liability (3D17-2704)

      At about 10:15 p.m. on October 31, 2014, an automobile driven by Daniel

Mira, Jr. (“Mira”), struck from behind two couples riding Mopeds, seriously injuring

all four of the Moped riders; one of the four died as a result of those injuries. The

decedent’s personal representative and the three survivors are the four plaintiffs in

the underlying lawsuit for wrongful death and personal injury in the Monroe County

Circuit Court.

      Mira was employed as a line cook at Fogarty’s Restaurant. On the night of

the accident, Mira clocked out and left work a little after 5:00 p.m., went home, and



                                          2
returned about 7:00 p.m. with another off-duty co-worker. Mira and his co-worker

had several drinks at the bar in the restaurant. The bartender testified that Mira did

not appear to be drunk when he arrived, but did seem impaired after he left the

restaurant for about twenty minutes and returned.

      By the time Mira prepared to leave the restaurant, around 10:00 p.m., he was

intoxicated. The bartender testified that Mira was slurring his speech and could

barely walk. As an employee, Mira was entitled to a fifty percent discount on his

bar tab, subject to approval by the manager on duty.

      The number of alcoholic drinks consumed by Mira while at the bar that

evening was disputed. Hayes Robertson never produced a copy of the tab. Hayes

Robertson stipulated that three hours after the crash, Mira’s blood alcohol level was

0.173 grams per deciliter--more than twice the legal limit. It also stipulated that, at

the time of the accident, Mira’s blood alcohol level was 0.20 grams per deciliter.

      The plaintiffs sued Hayes Robertson, Mira, and Mira’s father (as owner of the

vehicle driven by Mira at the time of the accident). The claims against Hayes

Robertson were based on (1) the liability of an employer which permits its employee

to leave the business premises intoxicated, as elaborated in cases such as Carroll Air

Systems, Inc. v. Greenbaum, 629 So. 2d 914 (Fla. 4th DCA 1993), and (2) an

exception in Florida’s Dram Shop Act, section 768.125, Florida Statutes (2014),

permitting a claim of liability against one who “knowingly serves a person habitually



                                          3
addicted to the use of any or all alcoholic beverages,” for “injury or damage caused

by or resulting from the intoxication of such . . . person.”

      Proof that Mira was “habitually addicted” to alcoholic beverages, and that

Hayes Robertson knew of that addiction, was vigorously disputed. The plaintiffs

retained a forensic toxicologist, Mr. Ronald Bell, as an expert to address (1)

“retrograde extrapolation” of blood alcohol content (BAC) levels, 1 and (2) whether

Mira was habitually addicted to alcohol.

      The first topic, retrograde extrapolation, was resolved by the parties in the

stipulation regarding Mira’s BAC levels about three hours after the accident and at

the time of the accident. The second topic, however, required a detailed inquiry into

Mr. Bell’s expertise and qualifications.

      Mr. Bell is a Fellow of the American Board of Forensic Toxicology. His

summary of qualifications as a “forensic toxicology consultant” includes a bachelor

of science degree in chemistry, as well as non-degree graduate coursework in

pharmacology. That summary further represents that he is able to “offer consultation

and/or expert testimony in the following areas:

    • Effects of alcohol on human performance

    • Retrograde extrapolation


1
  Retrograde extrapolation uses a BAC level from a blood sample collected at a later
time (after an automobile crash, for example) to estimate the BAC at an earlier time
(the time of the crash, for example).

                                           4
      • Calculations relating blood alcohol level to amount of alcohol consumed

      • Effects of drugs on human performance

      • Calculations relating drug dose to blood concentrations

      • Role that drugs play in a person’s death

      • Review of laboratory data to determine validity.”

        Missing from this list of topics is the subject of habitual addiction to alcohol

and the medical expertise required to express a qualified diagnostic opinion on that

issue. Mr. Bell does not have a medical degree, or any diploma or certification from

the American College of Medical Toxicology.

        In pretrial proceedings, Mr. Bell provided an affidavit opining that Mira “is

an alcoholic.”

         Anyone who can achieve a blood alcohol concentration exceeding 0.16
         [grams per deciliter] and display some degree of function even if poor
         (walking, talking, etc.), has developed enough tolerance to the overt
         behavioral effects of alcohol to be defined as habitually addicted to
         alcohol.

Mr. Bell further relied upon Mira’s “Marchman Act” 2 detention about six weeks

before the accident, based on “his severe state of intoxication” and Mira’s

admissions “that he abused alcohol, often binged when consuming alcohol and was

an alcoholic.”




2
    See § 397.675, Fla. Stat. (2014).

                                            5
      The only authoritative reference work relied upon by Mr. Bell was a medical

textbook, Medical Toxicology: Diagnosis and Treatment of Human Poisoning, by

Matthew J. Ellerman, M.D. During a pretrial deposition and additional pretrial

testimony before the trial court on the motion to exclude his opinion on habitual

addiction to alcohol, Mr. Bell conceded: the laboratory tests upon which he relied

were only one criterion of many in Dr. Ellerman’s discussion of the medical

diagnosis of alcoholism, and he had not assessed the other criteria; medical

toxicology is a different specialty from forensic toxicology; he was unfamiliar with

the Diagnostic and Statistical Manual of Mental Disorders (“DSM”); the textbooks

in the field of forensic toxicology do not address alcoholism; and he did not conduct

any laboratory tests indicating that Mira’s BAC exceeded .3 grams per deciliter at

any time. Mr. Bell did not assess Mira’s physiological dependence as manifested

by a withdrawal syndrome, nor did he examine Mira’s medical records regarding his

treatment by a psychiatrist.

      Before reaching its decision to exclude Mr. Bell’s proffered opinion as to

whether Mira was “habitually addicted to alcohol,” the trial court also questioned

Mr. Bell whether training in forensic toxicology could be a sufficient basis for

“diagnosing a person as addicted to alcohol or an alcoholic.” Ultimately the court

concluded that medical toxicology and the ability to express an admissible opinion

on habitual addiction to alcohol were beyond Mr. Bell’s experience and



                                         6
qualifications. The trial court did not restrict its ruling in limine to a determination

based exclusively on Daubert. 3

        The jury returned a verdict that (1) Hayes Robertson was not negligent in

allowing Mira to leave the restaurant in an intoxicated condition before the accident,

and (2) Hayes Robertson did not knowingly serve alcoholic beverages to a person

habitually addicted to the use of such beverages. The plaintiffs filed a motion for

new trial and other post-trial relief, which was denied after a further hearing. The

plaintiffs’ appeal to this Court, Case No. 3D17-2704, followed.

        Facts and Procedural Background: Proposals for Settlement (3D18-106)

        Hayes Robertson served proposals for settlement on the three individual

plaintiffs at three different points in the pretrial proceedings. The first two sets of

proposals offered $500.00 per plaintiff, and the third set of proposals offered

$100.00 per individual plaintiff. None of the proposals were accepted and all were

thus deemed rejected.

        After trial and the defense jury verdict, Hayes Robertson moved for attorney’s

fees pursuant to section 768.79, Florida Statutes (2017). The individual plaintiffs

opposed the motion, contending that the proposals were not made in good faith and

that the proposed release of all claims appended to the proposals for settlement

rendered the proposals ambiguous and unenforceable.


3
    Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579 (1993).

                                           7
      Following a hearing, the trial court entered a detailed order in January 2018

denying Hayes Robertson’s motion and claim for entitlement to attorney’s fees. The

court canvassed applicable case law and, on the basis of its familiarity with the

pretrial and trial proceedings, determined that the offers were not made in good faith.

      [There were] two main issues tried in the case and there was substantial
      evidence admitted as to both claims. Summary judgment was denied
      because there were material issues of fact on these two points.

                                      *****

      [t]he offers of $500.00 and $100.00 did not bear a reasonable
      relationship to the damages claimed as a result of the automobile versus
      motorcycle crash that injured the Plaintiffs. At the time each offer was
      made, the claims against [Hayes Robertson] had merit, and it appeared
      that Hayes faced at least some exposure. Thus, the court finds that the
      nominal offers were not made in good faith.

      The trial court also concluded that the releases attached to the proposals for

settlement were unclear because they could be construed to release more than the

offeree—in particular, the releases could be construed to release Mira.

      Hayes Robertson appealed the order denying its motion for attorney’s fees.

That appeal is consolidated Case 3D18-106.

      Analysis: Final Judgment on Liability (3D17-2704)

      The plaintiffs contend that the trial court erred in, among other things,

applying section 90.702, Florida Statutes (2017), and Daubert rather than Frye v.

United States, 293 F. 1013 (D.C. Cir. 1923), or Marsh v. Valyou, 977 So. 2d 543

(Fla. 2007), in assessing the admissibility of Mr. Bell’s proffered expert testimony


                                          8
regarding Mira’s alleged habitual addiction to alcoholic beverages. The plaintiffs

are correct that the constitutionality of section 90.702, an issue in contention at the

time the trial court made its decisions on the evidentiary issue, “is a pure question

of law subject to de novo review.” City of Fort Lauderdale v. Dhar, 185 So. 3d

1232, 1234 (Fla. 2016).

      After the briefing was completed in these appeals, and only two days before

oral argument, the Florida Supreme Court issued its opinion in DeLisle v. Crane Co.,

43 Fla. L. Weekly S459 (Fla., Oct. 15, 2018). In DeLisle, the Supreme Court

reaffirmed “that Frye, not Daubert, is the appropriate test in Florida courts,” 43 Fla.

L. Weekly at S462, concluding that the amendment to section 90.702 was

procedural, an incursion into the Supreme Court’s jurisdiction to adopt such rules,

and thus unconstitutional.

      DeLisle also reaffirms that a trial court has broad discretion in ruling on the

range of subjects on which a particular proffered expert may provide admissible

testimony, and the ruling “will be upheld absent a clear error.” Id. (citing Davis v.

State, 142 So. 2d 867, 872 (Fla. 2014) (quoting Penalver v. State, 926 So. 2d 1118,

1134 (Fla. 2006)). In the present case, we consider the term “habitually addicted”

in section 768.125, and the trial court’s decision to exclude Mr. Bell’s proposed

opinion regarding Mira’s alleged habitual addiction.




                                          9
        The dictionary provides alternative definitions of “addiction” as pertinent

here:

        a: the quality or state of being addicted; specif: the compulsive uncontrolled
        use of habit forming drugs beyond the period of medical need or under
        conditions harmful to society.

        b: enthusiastic devotion, strong inclination, or frequent indulgence.

Webster’s Third New International Dictionary, Unabridged, at 24 (1986).

        The first definition raises medical and mental health issues regarding

compulsion, uncontrolled use, and “habit forming drugs.” These issues are similar

to those inherent in the American Psychiatric Association’s current diagnostic terms

for “alcohol use disorder.” 4 Such a diagnosis would require a medical professional’s

interview with the patient (and perhaps others) and any relevant lab tests or physical

examinations. And such a diagnosis would not rest on the basis of two BAC reports

(months apart) or by a toxicologist considering the testimony of lay witnesses about

an individual’s habits regarding alcohol.

        The second dictionary definition, based on “frequent indulgence” as applied

to alcoholic beverages, veers away from medical diagnosis and into the realm of

subjective observation. One consumer’s “frequent indulgence” may be two beers


4
   In the American Psychiatric Association’s Diagnostic and Statistical Manual of
Mental Disorders (5th ed.), eleven diagnostic criteria are relevant to three sub-
classifications of “alcohol use disorder.”
See https://pubs.niaaa.nih.gov/publications/dsmfactsheet/dsmfact.pdf (site last
visited November 27, 2018).

                                            10
after work on Friday nights; another’s may be so-called binge drinking several times

a year; and another’s may be daily consumption to the point of losing consciousness.

Fact-finding on the basis of that definition seems well within the province of a jury

presented with the evidence in the record before us. Given the stipulation between

the parties regarding Mira’s BAC levels upon arrest and at the time of the accident,

Mr. Bell’s proffered toxicology testimony would then seem merely to bolster the

testimony of lay witnesses with an incomplete attempt at medical diagnosis (hence

Mr. Bell’s reliance on a reference text on “medical” toxicology).

      A review of the legislative history of section 768.125, as enacted in 1980; the

separate misdemeanor offense of furnishing intoxicants to a “habitual drunkard”

after notice; 5 and the few reported Florida cases on the term “habitually addicted,”

do provide helpful insight, however.

      Initially, section 768.125 was to be numbered 562.51 to follow the “habitual

drunkard” statute, section 562.50. Liability for serving a “habitual drunkard” was

to be limited to a person convicted of a violation of section 562.50. An amendment

removed the conviction requirement and direct link to section 562.50, and the statute


5
   This statute, section 562.50, Florida Statutes (2018), was originally enacted in
1945. A person providing an alcoholic beverage (or other enumerated types of
intoxicants) to a person “habitually addicted to the use” of such beverages or other
intoxicants, after being given written notice “by wife, husband, father, mother, sister,
brother, child, or nearest relative that said person so addicted is an habitual drunkard
and that [the drunkard or person providing written notice is being injured] shall be
guilty of a misdemeanor of the second degree . . . .” § 562.50.

                                          11
in its present form was enacted. Ellis v. N.G.N. of Tampa, Inc., 561 So. 2d 1209,

1213-14 (Fla. 2d DCA 1990).         The Second District decision in Ellis, which

nonetheless retained the written notice requirement of section 562.50, was quashed

by the Supreme Court of Florida in Ellis v. N.G.N. of Tampa, Inc., 586 So. 2d 1042

(Fla. 1991) (“Ellis II”).

      Though the term “habitual drunkard” was eliminated in the enactment of

section 768.125 (but the term “habitually addicted” was retained), the Supreme

Court’s decision continued to use the terms interchangeably:

      We find the cause of action [in section 768.125] in this circumstance
      only requires evidence that the vendor had knowledge that the
      individual the vendor served was a habitual drunkard. Serving an
      individual multiple drinks on one occasion would be insufficient, in and
      of itself, to establish that the vendor knowingly served a habitual
      drunkard alcoholic beverages. On the other hand, serving an individual
      a substantial number of drinks on multiple occasions would be
      circumstantial evidence to be considered by the jury in determining
      whether the vendor knew that the person was a habitual drunkard. We
      agree with the Fifth District Court of Appeal in Sabo v. Shamrock
      Communications, Inc., 566 So. 2d 267 (Fla. 5th DCA 1990), approved
      sub nom. Peoples Restaurant v. Sabo, [591 So. 2d 907 (Fla. 1991)], that
      this element can properly be established by circumstantial evidence.

Id. at 1048-49.

      Subsequent district court decisions 6 have applied the Supreme Court’s

opinion in Ellis II, and the trial court did so in the present case as well. The trial



6
  Murphy v. S. Mut. Mgmt. Corp., 936 So. 2d 786 (Fla. 4th DCA 2006); Gonzalez
v. Stoneybrook W. Golf Club, LLC, Inc., 225 So. 3d 891 (Fla. 5th DCA 2017).

                                         12
court did not abuse its discretion in excluding Bell’s proffered testimony, whether

under Daubert and section 90.702, Frye, or Marsh.

      Ultimately the jury heard testimony from Mira, his ex-wife, the bartender on

duty the night of the accident, his passenger and co-worker, the police officer who

arrested Mira at the crash scene, and other Hayes Robertson employees, regarding

Mira’s consumption of alcoholic beverages, his work record (attendance and

performance), and his consumption of other drugs. This evidence comprised the

plaintiffs’ effort to establish, by circumstantial evidence as in Ellis II, that Mira was

a “habitual drunkard” or “habitually addicted” to alcohol.

       The jury instructions included a reading of section 768.125 and a charge

summarizing the 768.125 claim: that Hayes Robertson was negligent “by the service

of alcohol to Daniel Mira, Jr. on the night in question, when [Hayes Robertson] knew

or should have known that Daniel Mira, Jr. was habitually addicted to the use of any

or all alcoholic beverages.” After deliberation, the jury rendered its verdict finding

that Hayes Robertson had not knowingly served alcohol to a person habitually

addicted to the use of any or all alcoholic beverages. 7 The interrogatory verdict on


7
  The jury also returned a verdict of no liability on the negligence claim of allowing
Mira to leave Hayes Robertson’s premises “in an intoxicated condition” the night of
the accident. It was undisputed that Mira was “off the clock” as he consumed
alcoholic beverages that evening and as he and his passenger left the premises to
drive away. We find no error in the conduct of the trial or the jury’s verdict on this
claim, as this case is entirely distinguishable from the negligence cases relied upon
by the plaintiffs, including Carroll Air Systems, Inc. v. Greenbaum, 629 So. 2d 914

                                           13
768.125 was composite: the jury was not asked separate questions regarding (1)

whether Mira was “habitually addicted” to alcoholic beverages and (2) if so, whether

Hayes Robertson knew, or should have known that and served him anyway.

      Analysis: Order Denying Attorney’s Fees (3D18-106)

      The abuse of discretion standard of review also applies to our consideration

of the trial court’s conclusion that the proposals for settlement were not made in

good faith. State Farm Fla. Ins. Co. v. Laughlin-Alfonso, 118 So. 3d 314, 315 (Fla.

3d DCA 2013). In this case, the question is whether Hayes Robertson had a

reasonable basis at the time of the offers to conclude that its exposure was nominal.

Mount Vernon Fire Ins. Co. v. New Moon Mgmt., Inc., 239 So. 3d 183, 185 (Fla.

3d DCA 2018). Here, unlike the straightforward insurance policy coverage question

in Mount Vernon Fire Ins. Co., a final summary judgment was not obtained by the

offeror immediately after making the offer (Hayes Robertson’s motions for

summary judgment were denied, in the present case), there was ample circumstantial

evidence regarding Mira’s consumption of alcoholic beverages, letting the liability

issues go to the jury under Ellis II, and there was certainly no guarantee that the jury

verdict would be for Hayes Robertson.




(Fla. 4th DCA 1993), and Bardy v. Walt Disney World Co., 643 So. 2d 46 (Fla. 5th
DCA 1994).

                                          14
      Trial of the case was bifurcated, so damages were not reached in the liability

phase. But the order of magnitude of those damages, if the jury had found liability

on either or both of the plaintiffs’ causes of action, is obvious from the record.

Compensatory damages in a case of wrongful death and three significant personal

injury claims would be far from nominal. Here, as in Event Services America, Inc.

v. Ragusa, 917 So. 2d 882, 884 (Fla. 3d DCA 2005), we find no abuse of discretion

in the trial court’s assessment of the nominal offers and the prospect that, at the time

of the offers, the defendant “had at least some exposure.”

      For these reasons, we affirm the trial court’s order denying an award of

attorney’s fees based on the proposals for settlement. Our decision on this issue

makes it unnecessary to consider the second argument (ambiguity) advanced by the

plaintiffs regarding the order denying Hayes Robertson’s motion for attorney’s fees.

      Conclusion

      Nothing can alter the tragic aspects of the accident and its impact on the

victims, the conviction and imprisonment of Mira for a lengthy term of years, and

the effect on several families. But the trial court’s careful consideration of the

proffered expert witness testimony (particularly with the standards of admissibility

in contention in a pending Florida Supreme Court case) and its conduct of the trial

and post-trial proceedings were exemplary.




                                          15
      For the reasons detailed in this opinion, we affirm the final judgment in favor

of Hayes Robertson as to liability, and we affirm the order denying Hayes

Robertson’s motion for attorney’s fees, in these consolidated cases.



    ANY POST-OPINION MOTION MUST BE FILED WITHIN SEVEN
DAYS. A RESPONSE TO THE POST-OPINION MOTION MAY BE
FILED WITHIN FIVE DAYS THEREAFTER.




                                        16
