Weingrad v. Miles, 3D08-1592.

CourtCourt of Appeal of Florida (US)
Citation29 So.3d 406
Docket NumberNo. 3D08-1592.,3D08-1592.
PartiesDaniel WEINGRAD, M.D., Appellant, v. Kimberly Ann MILES and Jody Haynes, Appellees.
Decision Date03 March 2010

Hicks, Porter, Ebenfeld & Stein and Mark Hicks, Dinah Stein and Shannon Kain, Miami; Henderson, Franklin, Starnes & Holt and Bruce M. Stanley, Fort Myers, for appellant.

Robert S. Glazier, Miami; Alex Alvarez, Coral Gables, for appellees.

William W. Large for the Florida Justice Reform Institute as amicus curiae in support of appellant.

Gray Robinson, George N. Meros, Jr., Tallahassee, and Andy V. Bardos, for the Florida Hospital Association as amicus curiae in support of appellant.

Joel S. Perwin, Miami, for the Florida Justice Association as amicus curiae in support of appellees.

Before COPE and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.


Dr. Daniel Weingrad appeals an award of $1.5 million in noneconomic damages to Kimberly Ann Miles ("Miles") and her husband, Jody Haynes (collectively, "Appellees"). The sole issue before this Court is whether the retroactive1 application of section 766.118, Florida Statutes (2003), which capped noneconomic damages in certain medical malpractice actions at $500,000, is constitutionally permissible as applied to the facts of this case. Because we find that Appellees had no vested right to a specific damage award at the time the injury occurred, we conclude that applying the cap to Appellees' noneconomic damage award is constitutional, and we reverse and remand for proceedings consistent with this opinion.


In December 2002, Miles was diagnosed with melanoma and had a tumor removed in an outpatient procedure. She believed that no melanoma remained but sought a second opinion from Dr. Weingrad, who told Miles she had residual melanoma in her leg that needed immediate attention. Miles underwent surgery in January 2003. Test results later showed the first procedure had removed all of the melanoma.

In early 2003, Miles developed a serious infection from the second surgery, which she contends was unnecessary. She has permanent swelling and pain and limited mobility in her leg. She has difficulty walking up stairs at Florida International University, where she teaches English, and can no longer go biking, dancing, hiking or walking with her husband. On September 9, 2005, Appellees served a Notice of Intent to Initiate Medical Malpractice Litigation, and on January 4, 2006, they sued Dr. Weingrad for negligence in performing the operation and for his follow-up care.

On September 15, 2003, nearly two years prior to Appellees' service of their Notice of Intent, the legislation capping noneconomic damages in medical malpractice actions went into effect. The statute's enabling clause, included as a footnote to section 766.118, states:

It is the intent of the Legislature to apply the provisions of this act to prior medical incidents, to the extent such application is not prohibited by the State Constitution or Federal Constitution, except that the changes to chapter 766, Florida Statutes, shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of this act.

The legislation was one of many reforms dating from 1975 whereby the Legislature attempted to alleviate an identified crisis in the medical malpractice insurance market. The 2003 tort reform followed extensive research by the Governor's Select Task Force on Healthcare Professional Liability Insurance, which found "an overwhelming public necessity" for the reform measures. (Report of the Task Force at 217-18).2 The task force concluded that limitless noneconomic damage awards were "a key factor (perhaps the most important factor) behind the unavailability and un-affordability of medical malpractice insurance in Florida." Id. at 220. The task force further found that "no legislative reform plan can be successful in achieving the goal of controlling increases in healthcare costs" without including a cap on noneconomic damage award amounts. Id. at 221.

In the present action, a jury found in favor of Appellees and awarded them $1.5 million in noneconomic damages: $1,450,000 for Miles' pain and suffering and $50,000 for her husband's consortium claims. Dr. Weingrad moved to limit the judgment pursuant to the statutory cap. The trial court denied the motion, holding that because the causes of action accrued prior to the statute's enactment, applying it to the Appellees' action would amount to an unconstitutionally retroactive application. This appeal followed.

Governing Law and Analysis

We review de novo whether the retroactive application of section 766.118, the "caps statute," is constitutionally permissible as applied to the facts of this case. Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 485 (Fla.2008). As Justice Pariente instructed in Lawnwood Medical Center, Inc. v. Seeger, 990 So.2d 503, 508 (Fla.2008), "we do not take lightly a contention that a statute passed by the Legislature is unconstitutional and we start with the well-established principle that a legislative enactment is presumed to be constitutional."

Determining whether a statute may be retroactively applied requires consideration of whether the statute expresses the intent for retrospective application and if so, whether the retroactive application is constitutional. Old Port Cove Holdings, Inc. v. Old Port Cove Condo. Ass'n One, Inc., 986 So.2d 1279, 1284 (Fla.2008); Metro. Dade County v. Chase Fed. Hous. Corp., 737 So.2d 494, 503 (Fla.1999). In light of this clearly articulated standard, our analysis considers four determinative issues culled from pertinent Florida Supreme Court case law: (1) Is the statute procedural or substantive? See Vill. of El Portal v. City of Miami Shores, 362 So.2d 275, 278 (Fla.1978) (finding that "procedural statutes do not fall within the constitutional prohibition against retroactive legislation and they may be held immediately applicable to pending cases"); (2) Was there an unambiguous legislative intent for retroactive application? State Farm Mut. Auto. Ins. v. Laforet, 658 So.2d 55, 61 (Fla.1995); (3) Was Appellees' right vested or inchoate? Clausell v. Hobart Corp., 515 So.2d 1275 (Fla.1987) (holding that the retroactive application of a statute did not violate due process because the plaintiff had no vested right); and (4) Is the application of section 766.118 to these facts unconstitutionally retroactive?

1. Substantive vs. Procedural Statutes

The general rule is that procedural or remedial statutes may operate retrospectively but substantive statutes may not unless the Legislature has indicated a clear intent to the contrary. Laforet, 658 So.2d at 61. Substantive law prescribes duties and rights, whereas procedural law concerns the means and methods to enforce those duties and rights. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994) (holding that a statutory amendment that limited punitive damages was substantive and did not apply retrospectively); see also In re Rules of Criminal Procedure, 272 So.2d 65, 65 (Fla. 1972) (stating that substantive law "creates, defines, adopts and regulates rights, while procedural law prescribes the method of enforcing those rights").

In its analysis, the court in Mancusi stated that because punitive damages are assessed as a punishment against the wrongdoer as opposed to compensation to the injured plaintiff, the plaintiff's right to a claim for punitive damages is subject to the Legislature's plenary authority. The court found that the "establishment or elimination of such a claim is clearly a substantive, rather than procedural, decision of the legislature because such a decision does, in fact, grant or eliminate a right or entitlement." 632 So.2d at 1358.

In DaimlerChrysler Corp. v. Hurst, 949 So.2d 279, 287 (Fla. 3d DCA 2007), this Court found the statute that set forth the procedures for filing or maintaining certain asbestos causes of action was procedural in nature because it "merely affects the means and methods the plaintiff must follow" and does not eliminate a plaintiff's right to sue for asbestos-related injuries. As a result, this Court found that no constitutional analysis was required and the statute could constitutionally be applied retroactively. Id.

In the instant case, the statutory cap on noneconomic damages affects an individual's right to a certain amount of damages. It does not affect the means and methods a plaintiff must follow in a medical malpractice action but instead prescribes and regulates the rights parties have to a particular damage award. Thus, the provision is substantive in nature. Because the caps statute is substantive, our analysis turns on the question of legislative intent and constitutionality.

2. Legislative Intent for Retroactive Application

Without clear legislative intent to the contrary, substantive statutes will not operate retrospectively. Laforet, 658 So.2d at 61. The Legislature unambiguously provided that section 766.118 was to operate retrospectively and apply "to any medical incident for which a notice of intent to initiate litigation" was mailed on or after September 15, 2003, as long as the application would not be prohibited by the state or federal constitutions.

Where a statute expresses clear legislative intent for retroactive application, courts will apply the provision retroactively. Doe v. Am. Online, Inc., 783 So.2d 1010, 1018 (Fla.2001). In Doe, the Florida Supreme Court upheld the retroactive application of the federal Communications Decency Act because the Act "clearly reflects Congress' intent to apply the CDA to all suits filed after its enactment, notwithstanding when the operative facts arose" and found that because Congress' intent was clear, it must be implemented. Id.

A federal court addressing an issue nearly identical to the instant action also properly deferred to the Legislature's intent...

To continue reading

Request your trial
18 cases
  • Prince George's County v. Longtin
    • United States
    • Court of Appeals of Maryland
    • June 16, 2011
    ...it allows the legislature to retroactively abrogate causes of action which, although accrued, have not been acted upon. Weingrad v. Miles, 29 So.3d 406, 412–16 (2010) (right to bring cause of action in the future is a “mere expectation.”) ( citing Clausell v. Hobart Corp., 515 So.2d 1275 (F......
  • Martinez v. Asplundh Tree Expert Co., 17-0039.
    • United States
    • Supreme Court of West Virginia
    • June 16, 2017
    ...has no vested right to a statutory penalty such as [ ] punitive damages[.] 230 Ill.Dec. 197, 692 N.E.2d at 1366 ; see Weingrad v. Miles , 29 So.3d 406, 416 (Fla. Dist. Ct. App. 2010) (finding plaintiff "had no vested right to a particular damage award").The foregoing technical analysis notw......
  • Prince George's County v. Longtin, Case No. CAL-01-23689
    • United States
    • Court of Special Appeals of Maryland
    • April 25, 2011
    ...allows the legislature to retroactively abrogate causes of action which, although accrued, have not been acted upon. Weingrad vs. Miles, 29 So. 3d 406, 412-16 (2010) (right to bring cause of action in the future is a "mere expectation.") (citing Clausell v. Hobart Corp., 515 So. 2d 1275 (Fl......
  • Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc.
    • United States
    • Court of Appeal of Florida (US)
    • May 30, 2012
    ...The argument was presented in the motion for rehearing. 3. The Third District reached the opposite conclusion in Weingrad v. Miles, 29 So.3d 406, 416 (Fla. 3d DCA 2010). To the extent that the decision in the case before this court turns on the existence of a vested right to assert the caus......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT